“Marriage Story”: A Mediator’s Take on the Divorce Process

rings-1185863-m-300x200I work with couples that are separating and divorcing so when Noah Baumbach’s film,“Marriage Story” first opened, I was curious and wanted to see it. “Marriage Story” renewed my strong conviction that the best ways to resolve conflict are through mediation and the collaborative law process. This marriage story shows what happens when things moves beyond a party’s control.  The line in the film that stood out the most to me was:  “You are fighting for something you don’t even want.”  One striking moment in the film was the literal tug of war between the parents and the child.  The parents in the film clearly love their son but their choices about how to resolve their dispute lead them down a difficult path to resolution.

What follows are some of the lessons to be learned from “Marriage Story”:

  1. The mediation process: The portrayal of the mediation process in the film does not accurately reflect the mediation process.  (In all fairness, we only see a small part of a session that does not last too long.) Mediation involves informed decision-making facilitated by a neutral party.  In my opinion, what takes place in the film is closer to couple’s counseling.   Charlie and Nicole, the main characters in the film, initially chose the mediation process.  Our first look at the mediation is when the mediator asks the parties, Charlie and Nicole, to speak about each other in a positive way.  It appears each has brought a list but Nicole doesn’t want to participate in the exercise.  She is clearly feeling very emotional.  She feels pressured by the mediator and concludes he is not neutral.  The mediation falls through even though it appears Charlie and Nicole had made prior agreements about how things will work and have expressed a willingness to work together.  This mediation scene emphasizes the importance of selecting a mediator with whom both parties feel comfortable.  Mediators have different styles and experience and it is important to become familiar with how the mediator works and whether both parties feel confident in the professional relationship. An initial consultation can be scheduled for that purpose.  Of course, it is also necessary to determine that mediation is the right process.photo-5-300x225
  2. Choosing an attorney: Nicole finds her way to Nora, a divorce attorney in California played with much flare by Laura Dern.  Charlie is served shortly thereafter when he has just arrived for a visit with Nicole and their son, Charlie (after being separated for a period of time). From my perspective, Nora fuels the battle.  At one point Nora states to Nicole: “This is a street fight now”.   The parties’ ability to speak directly becomes hampered and the relationship goes downhill.  The child looks to make sense of it all while the parents become caught up in a battle.  While some of the scenes in the film represent exaggerated characters (one would hope), it is clear that the choice of a matrimonial attorney can affect how the case proceeds. For those that saw the film, we should all aspire to be more like the Alan Alda character, Bert Spitz: brutally honest and trying to do the right thing for the family.  Bert says to Charlie: “I always go with the truth no matter where that takes us”.  He informs Charlie that things can get ugly – and, unfortunately, that is what happens.  Very shortly Charlie feels the need to switch lawyers.  He retains an attorney he feels is a match for Nora (Ray Liotta) at an initial retainer amount of $25,000.
  3. Informed choices: When couples have difficulty formalizing an agreement, it is helpful to consult with an attorney to understand options and to make informed decisions. “Marriage Story” involves a relocation from New York (Brooklyn) to California (West Hollywood/LA).  Nicole wants to pursue her acting dreams.  There is an apparent misunderstanding about the intention behind the move.  It is unclear whether it is Nicole’s intent all along not to return to New York or whether the decision evolved after the move.  Charlie thought the move was a temporary one and consented.  Once the relocation is done Charlie is at a disadvantage.  Because Charlie had a misunderstanding about the move, he did not consider the legal impact.  Had the couple been able to discuss the issue in advance and make informed choices the result may have been different.  All of the options were not explored beforehand.schedule-300x194
  4. Fairness: At one point, Nora makes an agreement for custody with time split “55/45” – more than Nicole requested.  Nora states: “I just didn’t want him to say he got 50/50”.  Nicole is surprised but lets it go.  It’s clearly a moment that is about the lawyer’s exertion of power rather than advocating for the client’s interests.  The pain caused by the process chosen is not necessary.  It does not have to be ugly.  This marriage story shows the potential impact of a litigated matter on the parties and the child when negotiations are structured as a win-lose situation.
  5. The positive and negative effects of divorce on children: Research shows that a large majority of children can adapt well and see no lasting negative effects on their grades, social adjustment or mental health.  This happens when children have good relationships with both parents and when the parents are unified in their co-parenting approach (at least on the major issues).  The story of a marriage can have a lasting impact on children.  “Marriage Story” is a dramatic reminder about putting the children first.  More information about the mediation and collaborative divorce process can be found on the Practice Areas section of my website.Custom-Stock-Photo-for-Blogs-300x200
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