Why Divorce Mediation? or My Observations as a Litigator and Mediator.

I wear different hats now in my career since I am a litigator, certified mediator, certified collaborative law attorney and a Couple Consulting Financial Advisorlawyer negotiator. This blog entry will focus on divorce mediation v. divorce litigation as I do both. Overall, my belief is that the couples that I have worked with in divorce mediation are happier with the process than the people involved in the litigated cases.   I have not given anyone tests to measure their happiness either after the completion of a litigated case or mediation, but this is how I feel.

What makes me say that? It’s the little things and the big things. Most couples that I work with in mediation walk out of the process together. Many of them walk out of each session together. One mediation in particular sticks out in my mind as I saw the couple hug in the parking lot after settling the case and getting in their respective cars. Although the parking lot hugging might be the exception rather than the rule, I don’t think it is such a rare occurrence for mediating couples. And why shouldn’t this be? After all this couple, at one time in their lives, were probably closer together with each other than they were with any other person in the world. Yes, the relationship did not work for whatever reason. They fell out of love, grew apart or something else, but at one time they shared something special. Why shouldn’t they part as friends or at least without bad feelings?

In contrast to divorce mediation, in my litigated cases, almost always the couples leave court separately. Usually this separate exit is deliberate. I walk out with my client and the other lawyer walks out with their client. Sometimes everyone walks out alone for various reasons. It is the rare case that I see the couple walk out together. Often times if the soon to be ex-husband and ex-wife were walking out together it was because the couple was coordinating pick ups or drop offs of their child(ren). Shouldn’t it be, though, that the couple can still have a relationship with each other since they are forever bound together by their children? That makes sense but it usually doesn’t happen.

So why is that? It could be because the couples that choose litigation over mediation or collaborative law were already at such a level of dysfunction that was irreversible. But, I believe if there was hope of having civility after the divorce process, the adversarial nature of the litigation process kills that. After all, the lawyers are called opposing counsel. A judge might ask, for example, where is your adversary, if only one side is in the room. The process can become mudslinging where the name of the game is to make oneself look great and the other side horrible. This is a time honored tradition. It might necessarily happen like this because of the adversarial nature of litigation.

I can say that in almost all of my mediated cases, the outlay for legal expenses was less, usually a lot less, than litigating couples. And isn’t that a huge part of dissolving the marriage? How much money should be paid in child support, maintenance, how is the marital property and debt divided, who gets what separate property, what are the credits to each are all issues worked out in a divorce one way or another. That means a lot of the case is about money. If the process costs less then there is more money to divide up in the end. Doesn’t it make sense to use a less expensive process? In my opinion, the mediating couples usually come out with something close to what I see in my litigations. Why not get there after spending less in legal fees?

My mediated cases resolve sooner, and usually much sooner than litigated matters. This ties into the expenses as the charges for my mediation sessions is hourly. Besides just money, usually people want to resolve their disputes as soon as possible. Some of my mediations resolve in one session. How can disputes be resolved so quickly? We usually get right to the issues immediately in mediation. I do a no fee initial consultation with the parties, for around a half hour, and in most cases we start mediating right away after the initial consultation.

In litigation either I first need to draft and file a Summons and Complaint or draft and file a Notice of Appearance, Answer and Counterclaim depending on which side of the case I am on. I strategize with my clients and sometimes we have a settlement negotiation meeting with the other side early on. Other times a motion is filed and now we start litigating with a judge assigned to the case. On the first court appearance, which is called a preliminary conference, often the only thing that happens is a schedule is set forth for the case to proceed in the future.

I also think the mediations resolve sooner as I find that mediations are done in a safe environment. There is an immeasurable value of people feeling heard in overcoming obstacles. Right at the first session I hear from each side. Both sides have an equal chance to air out their concerns, suggestions, and most things (within reason!) on their minds. In a litigation, this might not happen for a year or so down the road when a judge has the first hearing in a case. Even then the judge usually does not have much time to spare. The rules of evidence apply so people do not get to speak freely. Many times people do not feel like they were heard. I find that often, that is what makes the difference. People need to be heard.

Another reason I feel that people are happier with the mediation process is we get to focus on the future in mediation. We look to how the couple and the children will interact going forward. How will we make the finances work for this transitioning family is examined? In litigation the focus is on who deserves what, blame, and the past. Of course fairness is considered in mediations and future relationships can be considered in litigations but each process has its own focuses.

I do take pride and satisfaction in resolving cases through litigation, do not get me wrong, and still gladly accept litigated cases. There is a certain thrill in doing a good job and achieving victories through combat at trial. Everyone should keep in mind, on the other hand, that winning might not feel like winning after a divorce trial. The judge decides your future which might not resemble anything particularly useful for you. Litigation, it seems, though will always have its place as many are not right for or will not do mediation or collaborative law. I like that I am a litigator, certified mediator, and collaborative law attorney because I have different tools to get people through this important process in their lives.

As always, please see my different blog articles and website for more information about mediation, matrimonial and family law. Feel free to call too. It would be our pleasure to hear from you.