Review of The Marriage Story from a Divorce Mediator

In this review, I am focusing on the role of the divorce professionals portrayed (which were horrifying) and what we can learn from Noah Baumbach’s The Marriage Story.

WARNING-  the following contains spoilers.  Don’t read it if you have not yet seen the film.

The Marriage Story is a great film which movingly portrayed the end of a marriage. There is a lot we can learn from it. The film portrayed the pitfalls of litigation and, therefore, how mediation could have helped save money and resolve conflicts in the fictional marriage. Baumbach explored difficult topics with outstanding depth and the failure of communication and misunderstanding which caused the divorce was laid bare for us to see.

The role of the mediator…

First of all, the mediator was so ineffectual, I winced.  I would never start a mediation by saying ‘It’s going to get very dark and difficult and I want you to have a piece of light and happiness to remember during those dark times in this awful and difficult process.’  No wonder the wife (Nicole) stood up and stormed out!!

People are nervous and sad (among other emotions) when they come to my office.  I want to help them to heal, to take deep breaths, to be reassured that they have come someplace where we have gone through this before– where they will get guidance and support so that they can move forward, I want them to know that we will help them to figure out how to restructure their lives in a workable, fair, and affordable way. We, as mediators, will stay with them till they come out the other end. 

Now for the attorneys….

I was stunned, also, by how ineffective the divorce attorneys were at communicating with their clients.  In several scenes, the attorneys talked and laughed about events they had both attended – vacations, dinners – oblivious to their clients’ feelings, waiting while their lives and their child’s welfare are up for grabs. 

Where did their marriage go wrong?

This marriage ended because Nicole felt like Charlie’s voice was so strong that she couldn’t hear the voice in her own head.  She didn’t know what she wanted when she was around him.

Is that his fault?  Or her fault?  Most likely a combination of both.

Charlie bears some responsibility for failing to notice that Nicole didn’t contribute to their decision-making.  He was getting what he wanted, and he didn’t stop to think about why he always got what he wanted.  In a balanced relationship no one gets 100% of what they want.  (Sorry to disappoint you, kids.)

But Nicole also has some responsibility for not having communicated that she felt she didn’t have a voice in decisions. 

Somehow, the whole case gets whisked away to California…

Maybe Nicole did want to move to California.  But it seemed at the beginning of the film that she was going to do one job and planned to come back to New York, where she was a successful, respected actor.   Her attorney (the wonderful Laura Dern) said, ‘We have to file suit here,’  ‘Let’s set you up, enroll your child in school, and make this a California case.’  

Nicole did not say ‘yes, that’s what I want,’ nor did she say, ‘wait, that is not what I want.’  It didn’t seem to be about Nicole – it was what the attorney advised that she do. In this way, her voice was once again not heard. Her relationship to her attorney mimicked the failed relationship with her husband.

The attorneys failed to ask important questions.

I never heard anyone say:

            “Here is what litigation looks like.” 

            “Here is what it might cost you.” 

            “You have to decide – do you want to move to California, and take Henry away from his father, and live here permanently?  If yes – here is what that would look like.  If we win, Henry will live with you.  He will see his father summers and school breaks – but he won’t really grow up with his dad. 

            “And there’s a good chance you could lose.  Your life is in New York, Henry is in school in New York, he’s lived in New York his whole life.  Your work is in New York, you are a well-known and successful actor in New York.  And Charlie works in NY theatre, and just won a Macarthur grant.  He may well be able to prove more easily to a judge that the locus of your lives is in New York.”

No one said these things to Charlie, either.  None of the California attorneys communicated to him his strong arguments for filing for a divorce in New York and seeking to have Henry back in NYC with him.  Charlie is now relegated to a life where he will spend hours each month on planes – with his work suffering, not to mention the cost – in order to be a part-time father.     

So whose ‘fault’ is it? 

Nicole seems to have no more of a voice in her divorce than she had in her marriage.  But neither did Charlie.  And the lawyers probably each earned $100,000 in fees.

Near the end of the film, Nicole and Charlie sit down together, for the first time, to try to discuss and resolve the divorce.  (As a mediator, I was thinking – great!  What took them so long to try this?)

They discuss the costs of litigation.  Nicole’s mother is taking out a home equity loan to pay her lawyer.  Charlie is also broke.  The litigation will hurt their ability to save for Henry’s college.  They discuss the unpleasant invasiveness of the pending child custody evaluation.  Nicole says, “Can we try to discuss this and resolve it ourselves?” 

But they are unable to do so, without a mediator to help them (Find out more about mediation here).  They need to figure out where they want to live, long-term, and what are their options?  What is best for Henry, and for their respective careers? 

But they are not able to stick to these important topics.  They can’t resist accusations and blame, each wanting to feel more like a victim than a perpetrator.  The conversation devolves into hitting ‘below the belt’ as one can only do with someone with whom one has been intimately involved.

In one of the more painful moments, Charlie said “you’re winning,” and Nicole said “are you kidding me?”  Charlie punches a hole in the wall, and both are sobbing. 

There are no winners here. 

Had they tried to have these important conversations with an effective mediator, they could have been guided through that fight, avoid devolving into such viciousness. 

A mediator could have helped them to express their hurt and fears more directly, while focusing on the things that needed to be resolved, in order to settle the case in a way that was fair to both of them.

Is Mediation Right for Me?

8 Reasons To Try Mediation:

1. Faster Path to Closure:

You may have been wronged – but getting stuck in conflict, and seeking revenge, will only keep you thinking about and tallying up – reliving – those hurts.  The goal of mediation is to wrap up this part of your life, resolve and settle, so that you can move forward to your new and (hopefully) happier future, without the conflicts of the past.  Let them go!

2. Neutral:

The mediator is neutral.  I won’t take sides with you against your spouse, nor with your spouse against you. Instead, I will work with you to increase your understanding of each other and of your conflict, and help you to find ways that the future structure can work for both of you.

3. Control:

Mediation allows you to have control over the process:

      • You won’t agree until you are ready to – when the agreement meets your needs;
      • You schedule appointments on your time-frame, and can take the time you need between meetings to gather information, consider proposals, run it by those you trust.

4. Private:

Mediation is private and confidential, so that you can frankly discuss cash income, addiction, infidelity and any other sensitive issues.

5. Quicker End to Conflict:

Conflict is painful. Most people have a drive to resolve it. When you understand the sources of conflict, you have a huge release of creative energy which leads to terrific brainstorming sessions about how to solve the problem and end the conflict.

6. Shared History:

You will always have shared your years together.  Even though you are splitting up, you can’t change the past.  Do you want to ‘wish each other well,’ and move forward into this next phase?  Or do you want to destroy your former partner?  Your children will not thank you for destroying their other parent.

7. Better Relationship In The Future:

You may want to attend future birthdays, graduations, weddings; be at the hospital for the birth of your grandchild.  If you have (a) child(ren) together, you will always be connected to your ex.  Mediation will help you keep the lines of communication open, come to a deeper understanding of why things may not have worked in your marriage, and be better able to tolerate seeing your ex in the future.

Litigation is ritualized war.  Afterwards, it will be hard to be civil to someone who tried to annihilate you, during your divorce.  Avoid doing that!  Many kids whose parents are divorced have said that the biggest gift their parents can give them is the ability to be in a room together, and be civil to each other.

8. Reasons People Choose Mediation (quotes from clients):

      • Either we solve it together – or a stranger will tell us what to do.
      • I don’t want it to be lawyer v. lawyer.
      • Keep the friendship that we still have.
      • Have a fair process – fair for both of us.
      • Both of us want to do what’s best for our child
      • Respect each other’s individuality
      • Get clarity about what is the right thing to do
      • Save money
      • Accomplish our goals, such as making sure we are both OK, financially
      • Want to be good co-parents
      • The law is a blunt instrument – discussion in mediation is more tailored to what we need and care about
      • Hope to be able to be friends, in the future
      • Want to spend time together with our child

Moving from Litigation to Mediation

In mediation, we start from an underlying premise that we can find a place which will meet the needs of all members of the family. This is not always the case in litigation and often times the needs of the family get lost in a power struggle full of fear & defense.

Can high conflict couples mediate?

Looking back at the highest conflict couple I ever met with… Were they litigious, and went to attorneys who reflected where they were at? Or, did the attorneys make them more litigious? Hard to know.

An example of their intensity: During our session, she was so angry she THREW a pad of paper across the room as if she wanted to throw a boulder at his head.

Can this couple mediate?

They started their divorce process in a negative way – husband’s parents warning the husband, “She might kidnap the kids and take them to Europe. (She’s from Europe, originally). You should take the children’s passports, and change the life insurance while you’re at it.” He did as they adviced… Injecting fear and distrust into the process.

And then he hired a process server to serve the summons for divorce on her – starting with an attack which makes anyone feel fear – and when you are afraid, you look for protection.

The attorneys were fighting over the kids’ schedule for spending time with dad, and when the fight becomes framed as being about power – who will ‘win’ and who will ‘lose’ – it is hard to evaluate the benefit of trying out different schedules, seeing how they feel and what works for the entire family.

In mediation, I could ask, “How about we try mom’s idea for November, and dad’s idea for December, and then meet in early January and see how the kids are doing, and how it felt?”

But that is because, in mediation, we start from an underlying premise that we can find what they both – at least as far as their kids are concerned – need. That there is a place which will meet the needs of all members of the family. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and all of them.

We need enough trust that if one says, ‘the baby had a lot of trouble falling asleep,’ the other parent will say, ‘oh, the poor baby, what do you think caused that? how can we help him to avoid that in the future?’ and they can work together to try to resolve the problem.

Here – not sure we had that.

Also – she was invested in proving that she has been the #1 parent in the kids’ lives – wanted to know dad’s work schedule over the past year, to prove that he wasn’t a consistent dad. Instead of the question framed as – how can he be a better dad going forward, given his work and travel obligations?

Six Things Your Litigator Doesn’t Want You To Know

Six Things Your Lawyer Doesn’t Want You To Know

 OR – Why You Should Mediate Your Divorce

  1. Children
  • Your children will never thank you for destroying their other parent
  • Children always know the truth of their parents’ divorce.  They will focus on it, and listen carefully to everything they hear, and piece together the story.
  • The longer you are embroiled in conflict, the longer before your children can settle back into being normal kids – focusing on school, friends, music, soccer – and not on the conflict between the two people they love most in this world.
  • No lawyer or judge knows your children as well as you do, and they don’t, and never will, care about your children as much as you do.
  • The legal system sees your children as pawns – who “has custody” of them?  Who “has visitation” with them?
  • Actually – the words “custody” and “visitation” don’t have to appear in your parenting agreement!
  • Who “visits” their children?  You want parenting time, not visiting time.  The children are not in prison.
  1. Cost
  •       Do you want to put your children through college?  Or your lawyer’s children?
  •       Litigation is obscenely expensive – $100,000 to $300,000, if you end up at trial.
  •        There are families for whom $300,000 is peanuts, but that is not the case for most of us.  (And they have more to fight over, so spending $300,000 might make sense to them.)
  •        Lawyers have a conflict of interest around settling the case.  If an attorney stands to earn $20,000 in a negotiated divorce, and $150,000 if the case goes to trial, will he/she really put 100% of effort and focus into settling the case?  Would you?  (I’m sure many attorneys try, in good faith, to behave ethically, but we are all influenced by our own needs and potential rewards.)
  •     Ask your attorney to sign an agreement to withdraw, in the event the case goes to litigation, and see how he/she reacts.  A collaborative agreement which requires mandatory withdrawal will shift the attorney’s focus toward settling, and get rid of the conflict of interest.
  1. The judge is not going to “feel your pain.”
  •          The judge will not be outraged (the way that you understandably may be) by the way your spouse betrayed you, broke all promises, ignored your marriage vows and left the marriage.  The judge has (a) heard it all before and (b) wants to give each side something.
  •        Judges have a tendency to have you win on some issues, and your ex win on others.  To split the baby.
  •      You won’t see a judge for a long time, and when you do, he/she will want to hear from your lawyer, not you.
  •      The judge will not be the wise parent whom you have always wished you had, and believe you deserve.
  •        Judge’s dockets are too full for them to get to know you, and to put a lot of deep thought into your situation, your family, and your best outcome.
  1. Lawyers
  •         Attorneys make a lot of promises they can’t keep.
  •      The outcome of a trial is never a sure thing.
  •          Lawyers are good about saying, “I’ll argue this, and I’ll argue that,” but not always good about telling you the arguments against you — “And this is what your ex’s lawyer is going to argue for him/her,” or “This is the outcome that will most likely be ordered in court.”
  •        The lawyer’s job is to keep fighting, and to come up with arguments to strengthen your case.
  •       The lawyer’s job is not to resolve things, to help you move on with your life.
  •       Litigators are fire-fighters and they won’t focus on your house till it’s about to burn down.  Which won’t be for 2-3 years.
  1. Ritualized War
  •                 The legal system sees the restructuring of your family as a legal problem.
  •                  If it’s a legal problem, you need lawyers to “resolve” it.
  •                   You can, instead, see it as a human/family problem, and the people who best know you, your family, your children, are in the best position to help you decide what you each need, going forward.
  •                      If you didn’t need a lawyer to get married, why do you need one to get divorced?
  1. It’s Your Life
  •                       People often wish to give this whole mess to someone else – to meet with a lawyer, an expert, a  judge, who will hear their side, and understand and sympathize, and take care of it for them. (And who can blame you?  Divorce is overwhelming.)
  •                         Well – yes – most matrimonial lawyers are able to sympathize, and listen to your story, and get angry on your behalf.
  •                          But the reality is that, once you have paid the retainer fees, you will find it very difficult to reach your attorney on the phone.
  •                             Litigation takes up a lot of time, and attorneys are usually in court every morning, working on the cases that are ready to go to trial.
  •                             And your case – well it won’t be ready to go to trial for 2-3 years.