Same Sex Divorce Mediation.

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 penicillium 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.

                        author

Jonathan Crane

Jonathan Crane has been a trial lawyer in downtown Los Angeles for 20 years, handling all types of civil cases for all types of clients. In the course of that period he has come to realize that many, if not most, disputes that result in lawsuits could and should be… MORE >

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