Same Sex Divorce Mediation
by Jonathan B. Crane, Esq. MEDIATE.COM
Unlike many of my friends, I attach no particular significance to the millennium other than its usefulness as a yardstick to measure our growth and progress, our foibles and wrong turns. Hydrogen bombs, impressionism, personal computers, woman's suffrage, flush toilets, telephones and penicillin all mark this passing millennium.
Conspicuously absent this millennium is governmental approval of same sex marriages. This omission is a bitter one for loving same sex couples, whose joint endeavors in the marketplace are marked by a shadowy uncertainty unless instantly memorialized in writing. E.g., Bruce purchased a vase for the home today with funds earned on his own. The purpose of the purchase was to provide decoration for the joint residence during the period in which Bruce and Dennis cohabit. Thereafter, it is intended that all rights in the vase remain with Bruce.
Also conspicuously absent on the verge of the new millennium is the widespread acceptance and use of mediation to resolve business and personal disputes. People still resolve their disputes by litigation, a form of problem solving only slightly less primitive than that of mortal combat. Thousands and thousands of dollars, money that could be used to fund a settlement, are handed over to attorneys making no promises to ensure that the fees bear a reasonable relation to the value of the issues in dispute.
By way of introduction, I am a lawyer and a mediator. As a lawyer, I represent people in conflict with someone else. I am the knight errant assigned to bring back the head of the dragon. As a mediator, I see no dragons. I work together with both people in the conflict to jointly resolve their disputes efficiently and economically, in a healthy and confidential manner. My company Partners in Conflict, handles all types of cases and we are pioneers in the field of same sex divorce mediation. For those cases, we use two person teams comprised of one attorney and one psychologist, one man and one woman.
Divorce, separation, dissolution of any kind can be a gut wrenchingly difficult experience. Everything that was built or acquired as a couple is typically imbued with emotion-charged memories of lost love. Minor disputes are often clouded with feelings of loss or betrayal. Decisions about the future are sometimes laden with drama. The Family Law Courts which are made available by the State to formally dissolve the marriage, divide the property and provide for the welfare of children, are frequently an arena for savage revenge.
For more than a decade now, ‘straight’ couples have been given the opportunity to mediate their divorces. A number of private mediation companies provide full service mediations, identifying all of the issues that would be resolved in a trial, working through those issues and presenting the Court with a pre-packaged, stipulated proposed property division judgment, ready to be stamped and filed. The parties to such a mediated settlement are given the opportunity to consult with their attorneys and accountants to see how close their agreement is to the likely result of a trial on the same issues.
The Gay Community has, to date, not been as well served. Same sex separations are, of course, every bit as emotionally charged and messy as heterosexual divorces. Property division is far more messy. This is due in large part to the absence of a governing body of law. Property division laws for married couples vary from state to state but every state has such laws. Unmarried partners, --whether they choose to be unmarried or are forced to remain unmarried because the state will not recognize their union--, must rely solely on contract law, and frequently must rely on oral contracts.
An oral contract is enforceable as to many types of property, including artwork, home furnishings, electronics, jewelry, flatware and lots of other things that couples buy together. Unfortunately, the average person does not think in terms of recording his intentions with a well-rehearsed speech whenever he or she makes a domestic purchase. Thus litigation involving claims that an oral contract was broken are quagmires of "he said" versus "she said", testimony. Liar's contests, as these situations are sometimes called, are expensive. They are not susceptible to pre-trial judgments or dismissals, because they call for the judge to actually listen to the testimony, and judge the credibility of the witnesses before making a ruling. Attorney's fees are particularly onerous when the same pot of money that would otherwise be divided, is being used to pay for two sets of lawyers.
The answer is simple: Do not litigate. Mediate. Worry less about what a court would be likely to say is an appropriate division of property. Decide for yourselves with the help of a trained mediation team.
At Partners in Conflict we have a method in which we systematically untangle the mess one string at a time. Without giving away all of our secrets, the method can be summed up as follows: An introductory `airing out' session with everybody in the same room is followed up with two caucuses. First one party will go off with the psychologist to talk about his or her process for working toward a consensus, while the other party works with the attorney to identify and prioritize all of the issues. We switch off, repeat the process. We return for an `open mike' period to talk about where we are so far and to compare notes on the issues identified and the priorities assigned. Then we dig into the issues one by one. Agreements on issues, however small are acknowledged and toted up. Tough issues are tabled and returned to later. The parties are encouraged to suggest the compromises or solutions for each issue unless and until a donnybrook is reached. Whenever necessary the mediators suggest different approaches, often looking `outside the envelope.'
The sessions are confidential. The atmosphere is respectful. There is love in the room.
Speaking of love. We try to recognize that the union was created in love. The life decisions made by the couples while together, were conceived in love. Love has its own logic and design. Thus the deconstruction of the `estate' should be undertaken with equal dignity.
Same sex mediation is an idea whose idea has come. It should have become a household word much earlier in the millennium but there is still time.
http://mediate.com/articles/crane.cfm (19 November 2004)