Why would divorcing couples switch from litigation to mediation or collaborative law?

For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, expensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule.

The discovery process, any motions and preparation all take time by the lawyers.  The longer attorneys spend, unfortunately, the legal fees increase invariably. In the adversarial trial system, each side attempts to build themselves up and diminish the other side.  It is hard to stay friendly after a hard fought trial. If there are children involved, then the couple is forever connected through their children.  The fact that children’s parents are no longer together can be a tough fact for children by itself.  Intensified bad feelings between the parents during and after the litigation can only exacerbate the trauma for children.

Some people see some of these aforementioned negativities while going through the litigation process and realize that it is not too late to try alternative dispute resolution methods such as mediation or collaborative law.  Each is a non-adversarial process that is, almost always, less expensive than a completely litigated case.  The more fortuitous people are able to come to the conclusion that alternative dispute resolution is the better option before getting involved in litigation.

It seems, however, that there will always be a need for litigation as coming together to make agreements is what mediation and collaborative law is all about. It takes both sides to be willing to do it.  First, each needs to sit at the table to try to work through the issues.  Next, solutions and compromises need to be agreed upon in order to fashion resolutions. Not everyone can or will do this.  Some people find that they need to litigate after trying mediation or collaborative law.  This, I find, is the exception rather than the rule.  I do mediation, collaborative law and litigation.  For those that are willing to try it, I recommend mediation and collaborative law over litigation in most instances.

For more information about matrimonial, family law, mediation and collaborative law, please see my other blog articles and website.  Call about your free initial consultation.  I would look forward to hearing from you.

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