“Let’s Mediate and Save Money on Lawyers!”

This Week’s Blog by Carole T. Orland.

“Let’s Mediate and Save Money on Lawyers!”

If you’re reading this blog and are a potential divorce candidate, you may be familiar with this refrain. Usually, it is said in a context that also includes such statements as, “Our case is so simple.” Or, “We can work it out.” Maybe, “I will be fair with you, not to worry.” Often, “If lawyers get involved it will cost a fortune and there will be less for you.” Or, “Mediation is more civil than litigation.”

Are any of these statements valid? Perhaps. But not always. It really depends on the parties and the situation at hand. At our firm, we provide mediation services, as well as litigation alternatives. The key is to screen the case at the outset to determine who and what case is appropriate for mediation.

Mediation requires a great deal of trust between the parties. That may seem odd, since you are getting divorced; however, there are situations where there is still a modicum of trust, despite the decision to go separate ways. If one party has cheated on the other, or has not been 100% transparent about finances, any trust that may have existed has likely eroded. Mediation can be difficult if the parties are in disparate positions with regard to understanding financial matters. For example, if your wife has an MBA and has been involved in complex financial transactions as part of her profession, and you are a person without similar financial acumen, the playing field in mediation will not be level. Or, if your husband is controlling and easy to anger, and you are more passive, the dynamics in mediation will likely follow that pattern making it more difficult to achieve a fair resolution.

If mediation still seems right for you, it will be important to work diligently to attain transparency and to move things along at a pace that doesn’t prejudice either party. Too many cases languish in mediation, without discovery, and prior to filing for divorce, only to fizzle out. It could mean spending weeks and months without any final result. It could also result in the expenditure of significant funds only to have to start the litigation process when the case is not resolved in mediation.

You should also be aware of adjunct costs often associated with mediation. Many people who are going through divorce mediation find it desirable or necessary to retain a coach in order to understand the negotiations, to provide context as to possible outcomes, and to assist with strategy. Even if you don’t employ a coach, at the end you will likely want an experienced divorce attorney to act as review counsel. This attorney will provide a critique of the Separation Agreement, based on the Financial Affidavits, any valuation analyses, appraisals, pleadings, and so forth. It will likely take considerable time for review counsel to provide you with an assessment of your potential settlement.

Children’s issues may also be the subject of mediation. A skilled mediator may be able to help you work though these issues to arrive at a Parenting Plan that will be incorporated into your divorce Judgment. If you and your spouse are fairly close on a Parenting Plan, mediation might assist you with ironing out some final issues. If you are fighting each other about custody, it will likely be hard to resolve your differences through mediation.

Bear in mind, litigation is not a dirty word! It can be a very reasonable alternative to mediation, where some of the issues described above are present. Litigation can be done in an amicable manner, assuming both parties and counsel are willing to do so. It can provide an efficient process for obtaining information and for ensuring that each party’s voice is heard. It can also provide transparency and ensure a level playing field. It does not necessarily result in stratospheric fees if everyone is committed to proceeding expeditiously. It means that one lawyer will be your advocate, coach and review counsel.

Litigation may also present an opportunity for mediation! Once discovery is complete, if there are still issues that prevent your case from being resolved, it can be most effective to hire a mediator to get to the end. In this scenario, the parties and their attorneys may spend a day with an experienced mediator who may be a former family law judge, an elder statesman of the bar, or a very experienced practicing divorce attorney. Most cases settle after mediation of this type.

At Broder & Orland LLC, we provide divorce mediation services as well as litigation alternatives. We are able to counsel you as to whether or not mediation is right for you and if so what type of mediation will ensure the best process and the optimal result.