(*Your narrative of significant events that occurred during the marriage.)
Judicial decisions are limited in two significant ways: By the limits imposed by statutes and by the practical constraints on how much detail a judge is willing and required to include in his ruling. Judges are trained to listen for the facts regarding the bigger issues, to limit their decisions to ruling on the bigger issues and to avoid getting bogged down in the details. Their decisions and awards tend to reflect a big picture focus. Lawyers therefore tend to focus on presenting evidence that supports “entitlement assertions” rather than presenting evidence of real-life events that aren’t clearly aimed at their client’s specific legal rights.
It should come as no surprise then that your lawyer will listen to your narrative of events based on the lawyer’s experience as a litigator, and will ask himself or herself: “How does this client’s story fit into the substantive law and how will I as this client’s lawyer present those pertinent facts as admissible evidence in order to win in court or to extract the best settlement from the other side?” It is a cookie-cutter approach. The lawyer extracts from your narrative facts the lawyer deems pertinent and reconstructs and condenses (re-writes) your story based on your lawyer’s opinion of what’s relevant under the substantive law and what admissible evidence supports that re-written, condensed story about your rights under the substantive law.
The mediator, on the other hand, will listen to each party’s story or narrative of events based on the mediator’s experience as a problem-solver who has helps thousands of divorcing couples in the past find creative solutions acceptable to both parties, and will ask himself or herself: “How can I help the parties craft an agreement that creatively incorporates as many of their respective interests and needs as possible based on what’s most important to each of them, without being limited by what a judge could or would be willing to do?
In many ways mediation is an art form, and divorce settlements reached in mediation can be unique works of art. Settlement agreements reached in mediation often contain terms unique to the parties, terms that a judge could not and would not award, but which, like any contract that has been agreed to by the parties, will be enforced by the courts.
The foregoing provides educational information and does not provide legal advice. It was not prepared for you either generally or in connection with any specific issue or case. The mediator does not give legal advice. You are responsible for obtaining legal advice from your own lawyer.