Sometimes Mediation Is An Economic Decision

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To Mediate or to Litigate?  Which is Right for Me?

The question is whether mediation is an effective approach to resolve marital or post-marital disputes.  The answer lies in your end-objectives.  Is the goal to resolve your issues time-and-cost efficiently?  Or, is the goal to punish and cause tremendous emotional and financial harm to your former spouse, at the expense of your children, finances and emotional health?  The fact is that litigation is expensive.  The more adversarial you and your former spouse are, the more expensive the process becomes.  In the end, the only “winners” are the lawyers.  So, unless you have money to burn, mediation may be the best alternative you have to achieving your end-goals.

Litigation is an extremely expensive proposition.  Most attorneys bill at $250 – $450/hour, and charge you for the initial consultation (typically 1 –  2 hours.)  So, even before you’ve retained your attorney, you’ve spent anywhere from $250 – $900.  Once your engagement begins (customarily following the commitment of a $3,500 – $10,000 retainer,) the billable hours also begins with the filing of initial pleadings, serving standard written discovery, issuing subpoenas to obtain information which should rightfully be disclosed by the opposing side, but rarely is voluntarily disclosed), and scheduling depositions.   And then you wait.  You are waiting for 30 – 45 days to pass before the opposing side is required to respond to your pleadings or discovery requests.  Maybe they’ll respond timely.  Maybe they won’t.  Your attorney is likely now focused on another case, and isn’t glaring at the calendar (like you are) wondering why nothing is happening.  Meanwhile, you’ve burned through thousands of dollars at this point.  You have to keep going.

Perhaps your opponent isn’t going to be cooperative.  You’ve had an argument recently, provoking the playing of the “stall game.”  This is a fabulously effective tactic used primarily to drive up legal costs because now your attorney is telling you that a complicated motion to compel responses to pleadings is required, in addition to a motion to compel production of discovery, motion to comply with mandatory financial disclosure requirements, motion to schedule depositions, and all clients’ all-time favorite, “motion for attorneys’ fees.”  The threat of having to pay someone else’s attorneys’ fees is often used to provoke cooperation.  Note to the readers:  It seldom provokes cooperation between the parties, and is not always granted by the court.

Maybe cooperation isn’t an issue.  Instead, after providing responses to all of your initial pleadings and discovery requests, now you are served with similar documents.  You are now required to file responses to counter claims, provide answers to standard discovery, and produce mountains of documents disclosing your financial status, educational background, employment history, and other various pieces of information designed to promote transparency during negotiations.  This is an extremely time-consuming and tedious process, and a task often left in the hands of a paralegal or legal secretary to achieve.  Since you are not likely the only client in the firm, yours becomes yet another pile of paper on the desk.

By the way, several more months have passed, while your attorney is trying to schedule a hearing before the court to address all of these pending motions or the paralegal is preparing your discovery responses to be served on opposing counsel.  As more money is spent on legal fees, you are no closer to resolution.  Just before the hearing is scheduled, the opposing party suddenly complies with your requests and produces whatever information you were waiting to receive, thereby negating the need for the hearing, which is promptly canceled.  But guess what?  The disclosure was incomplete.  Back to court you go.

The attorneys are more than willing to play this game in the name of “zealously representing their client.”  Through their retainer agreement, attorneys are customarily given full authority to work on the file.  When the funds are depleted, you are requested to replenish the  account.  If you are unable to do so, either work will stop on your file, or, the attorney will continue to work with the expectation that someone else will have to pay the fees at the end of the case.

And still, there is no real resolution to your dispute. This back and forth litigation will continue indefinitely, so long as you allow it to do so.  Many people make the mistake of thinking that mediation as an alternative to litigation is only available to those people who maintain amicable relationships pre- or post-divorce.  This is simply false.  Often times, mediation is an economic decision that two people determine is the best solution for them emotionally and financially.  Rather than stoking an already contentious relationship and draining savings accounts that have taken life times to build, the choice of mediation over litigation is made.   The benefits of mediation over litigation are many:

• CHOOSE LITIGATION IF:
  • Your sole objective is to cause financial harm to your former spouse.
  • You don’t care if your issues are resolved quickly and efficiently.
  • You believe that your spouse will be forced to pay your attorney’s legal fees (NOTE:  This is typically the “selling point” by many attorneys.  However, attorney’s fees are NOT always awarded, leaving you with a burdensome bill.)
  • You want to use your children as pawns to “get back” at your former spouse.
  • You want a third-party to make decisions about how you live your life.
• CHOOSE MEDIATION IF: 
  • You want to resolve your issues quickly and move on with your life.
  • You are concerned about your family’s finances, and don’t want to spend a lot of money on lawyers to resolve problems you can resolve on your own.
  • You don’t want a third-party decision maker, who doesn’t know you or your family, to make determinations based on a 15-minute hearing.

Litigation is a useful tool for many civil disputes in this country, for example, business contract disputes or medical malpractice claims.  However, family law issues are better served in the hands of a competent mediator, who will skillfully guide the parties to a mutually agreeable settlement without bludgeoning the family unit as an “unfortunate consequence” or , financially draining bank accounts, which is often the inevitable result.