If you’ve read some of the things I’ve written or know me at all, you know I am a Divorce Mediator (and Clinical Psychologist) and believe strongly that the mediation approach is far superior to hiring lawyers to fight or otherwise going down a contentious path.
However, one question I have not addressed is if it matters who you see FIRST. Even if you “want to mediate”, is it ok to first go see a Lawyer “just to see what he/she says” or something like that? Or does doing so have the potential to derail a process that could otherwise be resolved successfully and peacefully?
The answer, in short, is that going to see a lawyer first is, in my opinion, A VERY BAD IDEA.
There are 3 basic reasons for this:
1: People tend to do what they are trained to do and what they are most used to doing. So if the first person you go to see about your separation / divorce is an attorney, they will likely launch into their repertoire which will include discussing steps they could take on your behalf which will include filing motions in court, engaging in “legal maneuvering” to put you in the “best position to win”, and generally do things that are of a legal and contentions nature – and this process will generally will lead you towards a path that is likely to end in a contentious situation rather than a collaborative one.
2: Even if you went to see a lawyer first, and despite that, things were later brought back on track to a less contentious and more collaborative process, the initial way a process is started is likely to be the direction that guides its eventual progress and to determine, overall, how it moves from step to step as well as concludes. So even if the process does get back onto a positive track and mediation does come into play at some point, the initial direction from which the process started to be approached will likely be the one that drives it whenever there is a question of which direction to turn.
3: (here’s the psychological one – I am a psychologist after all!) There is a concept of cognitive dissonance. This concept means that we are uncomfortable when our thoughts and actions contradict. So, if we are doing something that we do not believe in, we tend to change our beliefs to match our behaviors (pretty amazing when you think about it since it’s completely irrational, but that’s for a different time). So even if a person were to at some point recognize that there is value to peaceful resolution of situation of a contentious nature, the fact that they first have gone to see an attorney as their first task will likely create a dissonance – [“if I believe that there is a different, better way to doing this process (mediation,) then why did I do it the other way first and start seeing a Lawyer?]” And that, ironically, will cause the person, as a human with typical Cognitive Dissonance Tendencies, to assume that the Lawyer process is “right” even if there is much evidence pointing to the contrary.
So, to sum it up, there are three basic reasons why the FIRST ACTION you take when contemplating separation/divorce is so important and can make the difference between the process ending up being a positive and collaborative one, or the opposite.
1: People tend to go with what they know, & LAWYERS PRIMARILY KNOW CONFLICT.
2: We tend to stick with what works for us in the beginning. So if a person sees a lawyer first, they will feel the need to justify having done so, even if that means allowing conflict to increase and the process to become a contentious one. In other words, we tend to stick with the path we initially choose, even when it is clear we’ve made a bad choice.
3: The concept of cognitive dissonance causes us to stick with behaviors we choose, even when we recognize they are wrong. So even if at some point a person recognizes that going down a contentious, fighting-based route will be to their detriment, they are likely to continue on that path.
So, SEE A MEDIATOR FIRST!!! It can’t hurt, the initial consultation is often free, there are no retainers, and if things can’t be resolved in mediation there is nothing preventing you from going down other routes at a later time.