At DivorceForce, we are constantly reminded of problems in the divorce court systems; and in some cases, lawyers motivated by their own agenda of billable hours, as opposed to serving their client in the best possible way.
Bottom line: Divorce litigation is often painful, and we need to find a way to make the divorce process less excruciating.
With this in mind, DivorceForce had the opportunity to talk to Bryana Turner, who transitioned from being a divorce lawyer to a divorce mediator. We were most interested to hear "Why?" and to learn her perspective on divorce litigation versus divorce mediation.
We think you will find what she has to say most interesting in the interview that follows.
DivorceForce: For starters, can you define for us the differences between using a divorce mediator, divorce collaborative lawyer, and divorce lawyer?
Bryana Turner: Although each of these professionals has the same goal—getting his or her client divorced—they employ different methods for achieving that goal. For me, the key difference is that some forcefully advocate for one side, while others allow the parties—rather than lawyers and judges—to make decisions.
In divorce litigation, for example, each party retains an independent attorney to fully represent him or her in the divorce. Each attorney is bound by the code of legal ethics to represent only his or her own client’s interests, and many do so very forcefully. The divorce process must follow the rules of civil procedure, which involves a highly invasive discovery process, and negotiations take place only through attorneys. If the lawyers can’t reach a settlement, a judge decides any unresolved issues after a trial.
A collaborative divorce lawyer also represents only his or her own client’s interests, typically in four-way meetings with each party to negotiate the terms of a settlement agreement. This process is the middle ground between mediation and traditional litigation because it gives the couple a chance to be part of the process. But if that process fails, the collaborative lawyers step aside, and the couple will need to retain new attorneys to litigate—again leaving key decisions in the lawyers’ or judge’s hands.
In mediation, the couple works with a neutral intermediary—the mediator—to help the couple make decisions about their divorce. There is less interest in advocating for one side than there is in finding resolution: a good mediator promotes discussion of each partner’s interests so that they can brainstorm options that creatively meet their collective needs. Although each mediator brings a different personal and professional style to that role, the commonality is is that the couple—not the court, lawyers or mediator—makes all of the final decisions.
DivorceForce: We find it interesting that you started your education in psychology, pivoted to law, and moved to mediation. Is mediation the intersection of psychology and litigation?
Bryana Turner: Absolutely. For me, mediation is the seamless intersection between psychology and litigation. A mediator’s job is to understand each side’s perspective and provide the partners with legal information as they figure out how to move forward. My background in psychology gives me a deeper understanding of my clients’ issues, while at the same time, my legal training allows me to help them brainstorm the best solution that the law allows, given their emotional perspectives. I’ve also found that my dual background in psychology and law allows me to adjust my methods to suit each mediation’s unique needs, rather than taking the one-size-fits-all approach that many clients find frustrating when working with attorneys.
DivorceForce: You state that your practice "was born from my frustration with the unnecessarily acrimonious, costly and drawn-out divorce litigation process." Who is at fault for this? The couple that cannot work together? A lawyer that looks to bill endless hours?
Bryana Turner: All of the above! Divorce is emotional, so clients are often overcome with hurt and anger and sometimes want to use the process to exact revenge rather than solve problems. And many divorce litigators are all too happy to accommodate those wishes, setting unrealistic expectations and promising to make the offending spouse suffer. The result is a long, expensive process that solves few real problems, while creating long-lasting emotional scars for both sides.
There’s also a problem of perception: the media usually portrays divorce as a form of warfare, with each side’s attorney employing dirty tactics that produce a winner and a loser. Most people therefore think that divorce is "supposed" to be nasty, and aren’t aware that other approaches even exist. That needs to change. I want couples to at least be aware that, if they want, they can avoid this high conflict process and take a more amicable approach—and, at the same time, regain control over the dispute and their futures.
DivorceForce: What is the inefficiency and waste in divorce litigation? How can this be overcome?
Bryana Turner: Litigation is generally designed to produce a winner and loser, not provide sustainable solutions for the future, and divorce litigation is no exception. The process is often prolonged and very expensive: the judicial system is swamped with divorce cases, and it’s typical for months to pass between a couple’s court appearances. Every appearance involves hours of the attorney’s time, which is billed on an hourly basis, so fees add up quickly. Once the case is set for trial—usually at least a year after it was initially filed—the couple will endure months of trial and then need to wait another few months for the judge’s decision. After the decision is issued, the attorneys still have to draft and file the divorce papers. Even after those papers are filed, it will take an additional three to six months for the Judgment of Divorce to be entered.
I think that, in the overwhelming majority of cases, all of that is unnecessary. In both mediation and collaborative law, the courts are not involved, so the timeline is set by the couple. They can speed the process up or slow it down as they see fit. The couple also saves money, because every hour spent by the attorneys or mediator is productive toward settlement, rather than time spent satisfying procedural rules that have nothing to do with the couple’s needs.
DivorceForce: Is mediation the answer? When is mediation good for a divorcing couple, and when is it not?
Bryana Turner: I think that all couples should attempt mediation before hiring a litigator. That’s especially true for couples with children, because—whether they like it or not—those couples are bound to each other as parents, and it’s very important that they maintain a working relationship. I’ve often seen those relationships permanently damaged by divorce litigation. The result is that children are forever exposed to the negative consequences of divorce.
To be sure, there are some rare cases—such as those involving domestic violence or where one or both partners are not willing to be financially transparent—where mediation, which relies upon voluntary and open participation by both sides, is not appropriate. But in the overwhelming majority of cases, couples should first attempt mediation before proceeding to the contentious, expensive, and damaging process of divorce litigation.
To see why, consider the evidence on the effects of mediation on the parent-child relationship after divorce. Dr. Robert Emery conducted a twelve-year study, demonstrating that just five hours of divorce mediation resulted in the non-residential parent seeing his or her children "much more often" and having weekly telephone chats with their children. The same study also showed that five hours of mediation positively affected the co-parent relationship. The primary residential parent "graded" the non-residential parent higher in many areas of parenting, including issues that are critical to the child’s development: discipline, grooming, religious and moral training, school and religious activities, and many more.
For all of these reasons, I believe that mediation can be the answer for many, if not most, couples—and I expect to see a rise in couples mediating their divorces in the very near future. That is why I am so excited to have launched Turner Divorce Mediation, where I specialize in mediation as a method to help couples navigate their divorces—and generate a workable plan for the next stage of their lives.
Bryana Turner graduated from the University of California, Santa Barbara with a BA in Psychology, and has a JD from Benjamin N. Cardozo School of Law. Her professional experience had been unfulfilling until she enrolled in Cardozo’s Divorce Mediation Clinic, where she found her passion. Serving as a divorce mediator allows her to draw on her psychology background, engage with interpersonal relationships and practice law in a way that permits her to have a positive influence on her clients. Turner Divorce Mediation, P.C. was born from her frustration with the unnecessarily acrimonious, costly and drawn-out divorce litigation process.