THE BENEFITS OF MEDIATION OVER LITIGATION

Written by on November 15, 2012 in Mediation

If you are reading this, chances are you’ve heard the horror stories your friends, neighbors, and family members have gone through in “divorce court.”  “That can’t be true…There must be another way to dissolve a marriage,” you tell yourself.  Well, there is.  In fact, there is more than one way to resolve a family law dispute without litigation.  But in this blog, I will discuss mediation, which is a great alternative to “fighting it out in court” that can save you time, money, aggravation and reduce your stress.

Before we begin, some necessary definitions:

Litigation is where the parties choose to have a Court resolve their dispute.  In order to do this, the parties must submit documents to the Court per the Court rules, pay the requisite fees, and attend Court on the day the Court chooses.  The Court then reviews the documents submitted, it may hear additional oral testimony or legal argument, and based on that, it submits a ruling.  This ruling is binding.

Mediation has many different formats.  The easiest format is when two parties seek the assistance of a neutral and unbiased third party (the mediator), to help them resolve their dispute.   Mediation does not take place in a Courtroom.  It takes place in a mediator’s office.  Unlike a Court, the mediator does not issue a ruling.  With the assistance of a mediator, the parties enter into an agreement regarding their dispute.  In family law, this form of mediation has enormous benefits which are discussed below.

1.    Mediation Saves Money:

Litigating a Family Law case in Southern California can get expensive – FAST!  Most attorneys in Southern California charge between $250 and $350 per hour.  It’s not uncommon for parties to spend $30,000 – $50,000 (or more), each to litigate a case.  (Yikes!)

If you would rather save your money than spend it on attorney’s fees, deposition costs, filing fees and court costs, then you should definitely consider mediation as an alternative to litigation.  Mediation can be significantly cheaper than litigation because the costs are shared, there is less back-and-forth through attorneys, less fighting, and no time spent waiting in Court.

Depending on the complexity of the issues, most mediators will let you know how many sessions will likely be needed to resolve the issues.  Based on this, they will determine a retainer amount that should be sufficient to cover those expenses.  The retainer (and the hourly fees) can be shared between the parties.  Most mediators’ offices will also draft the documents that are necessary to initiate and finalize your case.  The money you save on litigation can be huge – and can help you move forward with your lives (think, Villa in the South of France?).

2.    Mediation Saves Time:

Litigation is often a lengthy process lasting upwards of several years.  (I once received a case where the client was celebrating his 7th year litigation anniversary with little resolution.  What a terrible way to spend 7 years).

California’s budget cuts have resulted in decreased number of Courtroom staff, clerks, personnel, etc.  This coupled with the large number of parties who opt for Court intervention has resulted in lengthy delays in litigation.  For example, when a party files a request with the Court, they often get a court date that is several months out.  When your court date does finally arrive, the Court may not have time to hear you because of their enormous case load that day.  So you are now the lucky person who went to court and waited around all day to be heard, only to be told to come back another day.  At this point, you have needlessly taken a day off work and rearranged your entire carpool schedule.  If you add an attorney, a forensic accountant, and/or a custody evaluator to the mix, you are looking at one expensive waiting day.

If your goal is a speedy resolution to your case, you should consider mediation.  In mediation, after the parties have entered into an agreement, the mediator can prepare the documents for you.  Once the parties have signed the documents, the mediator can submit the documents to Court for the Court’s signature.  Obtaining a Court’s signature on an agreement is often much quicker than litigating the case at Court.  Once your documents have been approved by the Court, the case is done.

3.    Mediation Is Often Less Stressful than Litigation:

In mediation, the mediator will hear both sides of the argument and help the parties craft an outcome that has benefits for both sides.  In other words, the parties have a choice in the outcome of their case.  Litigation, on the other hand, does not provide the parties with control or choice.  Rather, the Court will hear the arguments and make a ruling on that issue.  The parties are pretty much stuck with that ruling.

Relinquishing the decision making power of your life to a Court is unnerving and stressful.  Moreover, it has been my experience that when parties resolve the dispute between themselves, the resolution is much easier to live with than if it was handed down by a third-party.

4.    Benefit to Children: Ability to Get Along with the Other Side

I believe that it is extremely important to keep your relationship amicable after separation when there are kids involved.  Litigating (i.e., duking it out in Court) does not help foster an amicable relationship between parties.  Parties that go through litigation often end up feeling anger, betrayal, and resentment towards the other side.  And, unless you are an Oscar winning actor/actress, it’s impossible to hide those feelings from your children.  These negative feelings will not only affect you, they will affect your kids, their relationship with the other side AND their relationship with you!

Let’s face it, your ex is going to be in your life for the REST OF YOUR LIFE –not only until the kids turn 18.  You will see them at your children’s high school graduation, your children’s weddings, grandchildren’s births, grandchildren’s birthday parties, etc.  Wouldn’t it be better if everybody was able to get along and your children had healthy relationship with both parents?  By eliminating the battle and encouraging agreements, mediation can help parties obtain closure and move forward with their lives – instead of regretting the past.

Conclusion:

I would like to state that mediation is not for everybody.  If your case involves Domestic Violence or abuse of any kind, I do not recommend mediation.  In those incidents, I recommend Court (and/or police) intervention.  In most cases, however, mediation is a great alternative!

Also, although you do not have to be an attorney to be a mediator, I highly recommend retaining a mediator who is also an attorney.  An attorney is trained to know what you can and cannot legally agree do, what clauses are unenforceable in an agreement, and what terms and conditions should be inserted in an agreement to prevent future litigation.  Or, as Benjamin Franklin so eloquently put it: “An ounce of prevention is worth a pound of cure.”

If you have any questions about mediation, please feel free to give us a call.

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