Client’s often ask us why they should even consider mediation. Many feel that there is no way that they will ever be able to reach an agreement with their spouse. They feel they’ve filed for divorce because they can’t get along so why on earth would their attorney think that mediation is even worth trying.
Mediation is a form of “alternative dispute resolution” - a way to resolve your case without going to trial in front of a Judge. The process takes on many different forms but always involves one “neutral” attorney, the parties, and their respective attorneys. The neutral attorney helps the parties see the pros and cons of their position and how the Judge assigned to their case is likely to rule at a trial. It’s an informal process, its not recorded, and is largely confidential as far as admissibility into evidence at trial.
Mediation is an extremely effective way to resolve a divorce case. To date, our practice has only had one case that was not able to be resolved through the use of mediation. That case ultimately resolved without a trial but did not resolve at the mediation. Here is why mediation works:
Cost - Mediation is less expensive that going to trial on your case. We would estimate that it probably cuts the cost of your divorce by more than 50%. Preparing for a trial includes many many hours of attorney fees in preparing witnesses, researching law, preparing questions for direct and cross-examination, reviewing documents and evidence and educating the client on the trial process. The hiring of experts for testimony can be extremely costly as well.
You get to pick the outcome. Mediation is based on the idea that there isn’t a resolution unless both parties agree on it. No one is going to force you to agree to something at mediation. If you don’t like something, then you shouldn’t agree to it. The best part about mediation though is that you have a lot of say in the outcome of your divorce. When you submit your case to a Judge at a trial, you and your attorney will present your point of view but you do not get ANY say in how the Judge ultimately rules on your case and no attorney can ever predict the outcome of a trial. After a trial, you can end up with a property settlement that is much different than what you ever anticipated, a spousal support amount that is way MORE or way LESS than you hoped for, and a parenting time schedule that is rigid and inflexible. A resolution after mediation is very predictable - you know exactly how your case is resolved because you negotiated it and you agreed to it.
Less stressful. Mediation is informal and it’s not recorded. You can speak your mind freely (to some extent). You can offer suggestions and have conversations. At a trial, evidence is presented by question and answer in a very formal format that must be in compliance with the Rules of Evidence. Being in front of a Judge can be overwhelming to some clients. Being questioned, under oath, on a witness stand can be intimidating for anyone. Mediation doesn’t work that way so it helps people relax and think more clearly about practical outcomes.
No testimony. In many cases there are things that we don’t want entered into evidence, placed on record or testified to under oath. Many issues related to a divorce have to do with income. If you or your spouse are self-employed and have to report your own earnings, maybe you haven’t always done that in comformity with IRS regulations. It would almost never be advisable for a client to testify under oath that they’ve signed a tax return knowing that they made more more than is reported. That would be admitting to a crime under oath! Similarly, not everyone will come off as a good witness in front of a Judge. Some client’s are overly nervous so they sound defensive. Some become argumentative. Mediation resolves a case without anyone having to testify.
Unique resolutions. Mediation allows the parties to come up with unique resolutions that work best for their situation. A Judge is not going to take the time after a trial to write up a parenting time schedule that works with everyone’s work schedule, school schedules, and extra-curricular activities. Similarly, they aren’t going to find creative ways to avoid excessive tax penalties or provide stability in the family when dividing the marital estate. Most judges are going to order you to sell all the big assets and split the proceeds and split all the debts in half. Sometimes, this doesn’t make sense for the parties financial situation.
Compliance is more likely. Everyone is more likely to comply with a Court Order if they are the ones who drafted and agreed to the Court Order. After a trial, a Judge is going to make a ruling that everyone must comply with regardless of whether or not they like it.
Time. Mediation can be schedule much sooner than a date-certain trial date. The chance to actually hold a trial in front of the Judge generally is not going to come up on the Court’s calendar until 8-12 months after the filing. Mediation can be held anytime both parties are ready to mediate. Often it is scheduled 3-4 months after the filing, sometimes even sooner. This means that your divorce can often be over in 1/2 the time it would have taken to get a trial date in front of the Judge.
You should consult with your attorney about whether or not mediation is right for your case. It can be a cost-effective alternative to going to trial. Call Lashier Law, PLLC at (586) 219-1984 if you are interested in scheduling a free no-obligation consultation regarding your divorce.