A case for mediation in divorce

By Sheena Jonker

‘I charge 950 dollars an hour. Ted over there will be assisting in your divorce. He charges 400 dollars an hour. You got stupid questions, you call Ted’

From Marriage Story

I had been sick with flu since around Wednesday last week and at the weekend, it was fluffy dogs, heaters, Netflix and waiting for ’rona results.

I got around to watching Marriage Story. Nominated for 6 golden globes, I found it to be deeply moving and an excellent glance into how destructive lawyers can be in divorce, how the system still rewards bad behaviour and how gendered the law is in many ways and in particular, in divorce.

Nicole (Scarlett Johansson) and Charlie (Adam Driver) have decided to get a divorce. They initially meet with a mediator but then Nicole is convinced she needs to go to a lawyer as she wants to move back to LA with their son whilst Charlie  wants them to remain a New York Family.

Nicole consults LA attorney Nora who starts helping her with her strategy and it is obvious that Nicole is deeply uncomfortable with the artificial spin Nora proposes putting on isolated aspects of their shared lives in order to gain advantage in court.

At one point, Nora lambastes her about being honest about how difficult parenting is and gives us a glimpse into what is expected of mothers and what is accepted from fathers:

‘People don’t accept mothers who drink too much wine and yell at their child and call him an ass-hole. I get it. I do too. We can accept an imperfect Dad. Let’s face it, the idea of a good father was only invented like 30 years ago. Before that, fathers were expected to be silent and absent and unreliable and selfish, and all we can say is we want them to be different. But on some basic level we accept them. We love them for their fallibilities, but people absolutely don’t accept those failings in mothers. We don’t accept it structurally and we don’t accept it spiritually.’

On hearing that Nicole has a lawyer, Charlie is shocked and keeps saying ‘I thought we were going to talk this through and work things out ourselves’ and eventually capitulates on the basis that he thought he should ‘get my own ass-hole’.

He consults a New York firm and he, too, is obviously deeply uncomfortable with the ‘strategy’ that has a bent on highlighting all the negative aspects of his wife. He is also shocked at what it will cost. He’s just won a substantial grant for his theatre and, though his wife is not claiming half of it as she could, he realises that it will, in any event drain away to pay his lawyers.

At one point his lawyers tells him his hourly rate:

‘I charge 950 dollars an hour. Ted over there will be assisting in  your divorce. He charges 400 dollars an hour. You got stupid questions, you call Ted’

It’s an arresting moment.

Charlie eventually seeks out an older attorney who charges less and has a possibly more measured approach.

He also tells Charlie some hard truths:

‘I charge 950 dollars an hour. Ted over there will be assisting in  your divorce. He charges 400 dollars an hour. You got stupid questions, you call Ted’

He also tells a few silly jokes and at one point Charlie asks:

‘Am I paying for this joke, Bert’

It brings it all home: the way we deal with this particular human tragedy (divorce) is confoundingly irrational, destructive on every level and completely unnecessary.

One of the saddest parts is when each parent has to submitted to a court-referred expert coming into their home to observe their parenting. It’s an excruciating glimpse into the artificiality of a stranger coming into the homes of two traumatized individuals in their most naked and vulnerable moments and who will have a significant role to play in who wins and who loses and what happens to their kid.

After watching the deeply painful mis-steps of each and the heart-wrenching irrationality of how we do divorce, the viewer is brought down to earth with the simple words ‘I thought we should talk’

We should talk and we should mediate these deeply painful discussions in ways that respect each of the parties, the children and create the most sacred and reverend of spaces to help divorcing parties navigate the disorientation and chaos in order to get to a re-orientation or a new order of things in a way that everyone has what the need.

If even one person loses, does anyone actually win.

I think we are far too inter-connected, in ways that we can see and in ways that we cannot see or fathom for it to be the true case that where only one of us wins that any of us actually win.

By Sheena St Clair Jonker