The opening sequence of the Oscar-nominated Marriage Story on Netflix shows two montages of the respective parents in said marriage – played by Adam Driver and Scarlett Johansson – talking about how each other is a good, kind, present, and loving parent to their son, their voiceover tributes accompanying scenes of another in light, funny, and mundane parenting moments. What we then realize is that these monologues are actually homework assignments given to them by a mediator as a way to remind themselves what was good about the marriage before they get into the challenging business of resolving their legal issues – namely custody of their child – in ending their marriage.
But while we the audience are given the benefit of hearing these odes to one another’s parenting styles and achievements, the characters themselves do not, as Scarlett Johanssen’s character decides she’s uncomfortable with the mediation process before it even begins and walks out of mediation, never to return. What follows for the next two hours of screentime is a rather brutal, expensive, and heart wrenching litigation between two people who love their child and want the best for him, egged on by divorce litigators and a litigation system that can make it all too easy for things to spiral out of control in ways that do not necessarily serve the best interests of the actual lives of those involved, namely Mom, Dad and Son.
To be clear, most family law attorneys would agree that Laura Dern’s portrayal of the winner-takes-all Century City divorce lawyer as written is extreme and not totally based in reality (even the real-life lawyer who she is purportedly based on has publicly distanced herself from the Dern character). And there are many legal aspects of the film which are not accurate – for starters, you can’t simply show up in California from New York and file a petition for divorce. But there is a definite emotional truth to the movie and the often destructive effect that hard-charging family law litigation can have on those involved.
Which leads to one unexplored question that the movie never raises: what if Scarlett Johansson had not walked out of the mediation session, and instead both parties committed to that process? Could the couple have avoided all the pain and anguish that follows?
That’s an impossible question to answer, and these are fictional characters after all, but it’s probably safe to say that, had they stayed in mediation, their story would probably have not brought Oscar nominations for both Driver and Johansson for the simple reason that all that drama would have likely been brought down quite a few notches. Mediation is not about tense-filled courtroom drama, high-pressure custody evaluations, and larger-than-life attorneys going at each other’s throats on your behalf at daily billing rates that could buy a decent used SUV.
Family law mediation takes a number of forms, but the one presented at the start of Marriage Story is a good and accurate example: two people in a room with a mediator who is trained in helping people resolve their legal issues in a divorce in a thoughtful, fair, and non-adversarial manner, with the intention of minimizing acrimony, drama, cost, and collateral emotional damage in an already tumultuous time. Sometimes lawyers are involved, sometimes they are not. It is really up to the parties involved, with the guidance of the mediator, to set the terms and structure of the mediation. With online mediation services, the divorcing parties do not even necessarily need to be in the same room.
Mediation does not work in every situation, and sometimes there is no choice but to get the courts involved, especially when one party is acting coercively, unreasonably, vindictively, or inappropriately. And the result you achieve in court may well be different that what you achieve in mediation, but one must also consider the cost of a courtroom litigation on the ongoing lives of those involved, costs which are so devastatingly explored in Marriage Story. At any rate, the question of how the overall well-being of the divorcing couple in Marriage Story had they stayed in that mediation session is one worth pondering.
Guidance on Your California Mediation Questions From a Westlake Village Family Law Attorney
If you would like to learn more about how our office can provide guidance on mediation or any other California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session here.