By Attorney Gregg Herman
Oct. 4, 2019
Divorce is an expensive proposition.
While most couples continue to go the traditional route of hiring attorneys to negotiate the division of their property and settle matters concerning the placement of their children, a growing number are choosing mediation as a more cost effective way to split.
The success rate of mediation continues to amaze me. I’ve handled cases where mediation felt like a waste of time, but I and my client came out with a complete settlement for significantly less than the cost of a traditional (litigated) divorce.
As a mediator, it is not unusual for parties to tell me when we reached an agreement that they are amazed that an agreement was reached. And even when there is no agreement at the end of a mediation, invariably the process succeeded in moving the parties closer so they reached a settlement later.
It all turns on the value of a neutral party offering an independent opinion, and minimizing costs.
When the parties know the likely result ahead of time, mediation is seen as a finacial win/win for both parties, as opposed to litigating their divorce, which, depending on the case, can cost between $15,000 – $35,000.
Further, most contested issues in family law are gray areas, not black-and-white, meaning that they are very much up to the discretion of a particular judge and, therefore, not likely to be reversed on appeal if a couple chooses to litigate their divorce.
Mediation puts the power to resolve those issues in the hands of the parties and their mediator without the (undesirable) intervention of the legal process.
Of course, the parties may not like the particular result recommended by the mediator. But, that is why the process is so important.
While an early neutral evaluation of a case may get to the same result with our without mediation, it helps the settlement process for a party to go through the give-and-take of negotiations.
Mediation also can help an attorney representing a party recommend a certain settlement to the client.
Everyone hates to lose, so if an attorney respects a mediator’s expertise the attorney is likely to push for the recommended settlement to the client.
Of course, it also makes it easier for the attorney to have an “ally” in recommending a settlement, which as all settlements do, represents a compromise from a client’s optimal position.
With the training available to mediators today and the track record of success, it is close to malpractice for a lawyer to take a client to trial without at least trying mediation.
As Winston Churchill famously said:
“Tis always better to jaw, jaw, jaw, than to war, war, war.”
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