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MEDIATION: THE BEST WAY TO AVOID TOTAL WAR IN YOUR DIVORCE

Thomas Ferreira here, your family law lawyer and mediator in Carlsbad, California.

I know it will sound weird to many of you, but I just love reading history books.  It’s always good for divorced and divorcing people to have hobbies, and being an armchair historian is one of mine.  I find the human condition fascinating, and I continually wonder why perfectly rational and normal human beings are so willing to run towards one another in large groups with fixed bayonets, in the teeth of machine gun fire.  The explanation has to do with something historians describe as total war.

“Total War” may be described as a something that advanced, European societies, the birthplaces of “the enlightenment”, engaged in mostly in the 20th century.  The defining characteristic of total war is the mobilization of every social institution, from government, to churches, to schools, to industry and commerce, for the insurance of military victory.  Total war is marked by the mustering of vast armies of young men (mostly men), as many as 10 million or more, in a last-man-standing war of attrition.

Does this remind you of your divorce? (you were hoping I’d get to that).  Sadly, many divorcing people spend everything they have, including their financial and their emotional resources, in a scorched earth campaign to defeat one another.  As with Europe after 2 world wars, the conflict leaves the combatants exhausted, cynical (see the writings of Jean Paul Sarte) and grief-stricken.

When I do divorce, I am astounded at excellent lawyers who are so sure they will win the case.  You see, one unalterable facet of human nature is to see the situation from your own vantage point.  You’ll win for sure, because your cause is righteous.  God is on your side.  Wow, and look at your armies (the attorney) and your war chest.

Alas, war is always a win-lose situation.  War becomes total when the parties slowly realize that victory is not sure, and therefore must be pursued at all cost.  As combatants become “entrenched,” resolution becomes impossible because of the huge sacrifice that has already been invested.

This is what leads some divorcing people to spend $200,000 on each side, fighting over a business worth $400,000.  Children suffer.  Parties leave the process exhausted, impoverished, cynical, their family life ruined.  But it doesn’t have to be that way.

I would encourage divorcing people not to become to become too invested in the righteousness of their legal position (my ex-wife used to say that WAR stands for “we are right.”)  Trained as we are for court combat, we lawyers tend to become overconfident, and this tends to cloud our judgment.  Consequently, we tend to see our client’s position in an overly favorable light.

In my experience, in a trial between 2 top tier lawyers, one party still comes out the loser.

In July of 1914 the mass armies of Europe were itching to start a fight that each side was sure they’d win quickly.  Everyone thought the troops would be home by Christmas.  This belief, prevalent on all sides  of the conflict, led the mass armies of Germany to invade France through Belgum (the famous Schlieffan Plan), while the French and British Marched out heroically to meet them.  Once the initial huge investment was made, the combatants settled in for a long slough, 4 years of murderous trench warfare.

Isn’t it better to have a conversation?  In divorce mediation, professional mediators help you to have a discussion and analyze what you want, and why you want it.  A frank, mediated discussion nearly always leads to a rapid resolution of your case.  Given the tendency toward total war, what do you have to lose?

Remember to …

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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