As a law student at the University of Idaho, I had my heart set on being a family law attorney. Considering my background as a child of divorce with a “father” whom we did not regularly see, helping divorcing families seemed a perfect fit. But then, I discovered how nasty family law was. I would have to advocate with all my strength for people, even if I despised them and their angles. I would have had to sell out my moral character for my job’s sake. I don’t betray my values for anything or anyone, especially two feuding and misguided strangers.
I couldn’t abandon my passion for family law, but I also couldn’t tear someone’s head off in a courtroom just because I had been paid handsomely to be somebody else’s attack dog. That wasn’t me. I couldn’t believe that so many family lawyers—including the supposedly “collaborative” folks—could so willingly check their consciences at the door. I decided that helping people cooperate was more important than helping them fight.
After my legal ethics professor inspired me, I decided to enter the only branch of family law that had any moral compass. Not a litigator. Not an advocate. Not a so-called collaborative lawyer (a major euphemism that hides what they really do). I cared more about my character than that. I became a mediator.
Mediation, of course, comes from the Latin word for “middle.” The best part about being a mediator is that the mediator can’t control the outcome. The worst part about being a mediator is that the mediator can’t control the outcome. Mediation is, on the one hand, liberating because someone else has to make the decisions, and the professional is off the hook from the difficult choices that affect a family’s future. A mediator has certain abilities to steer the husband and wife toward common sense, but in the end, that mediator possesses no real power. The mediator is trapped in his chair—perfectly placed between the two combatants—and is like a pedestrian walking along the middle of the street. He or she can get hit by the traffic coming both ways.
Some religions—indeed, many people—are opposed to pre-nups. In fact, when I appeared on a Portland television talk show to discuss child-centered pre-nups, the host’s lead-in read something like, “The idea of a pre-nup seems totally unromantic.” That’s because most pre-nups focus only on finances and they look toward divorce. Essentially, those “a la carte” pre-nups fix a price to exit the marriage. If that’s all a pre-nup is, I don’t blame religious denominations or anyone else for hating that concept.
A marriage is not a financial transaction. Love songs, not money songs, are played at weddings. Cookies in the shape of hearts, not dollar signs, are sold around Valentine’s Day. People who complain about pre-nups probably object because they tend to turn love into a business relationship.
With most contracts, making the contract is more important than having that stapled packet of paper. That both people have sat down and come to an agreement keeps either party from violating it. If I write a rule at my office, talk about it with my employees, and have them sign it, I’ll probably never have to pull out that signed document and shove it in anyone’s face. The act of agreeing is what does the most to prevent future violations, not the flimsy sheet of paper the filing cabinet.
A run-of-the-mill pre-nup does the same thing, if you think about it. Pre-nups focused on a divorced payout tend to accelerate divorce, because that was the implicit objective from the start. If people want a happy marriage, and it’s often how some finance-obsessed celebrities do, they shouldn’t start out with a document that looks ahead to the end of a union that hasn’t even begun. It’s time to re-orient our thinking about pre-nups. It’s time to call most of them what they are—divorce plans.
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