I am a lawyer who believes that the future of divorce resolution lies in mediation. Daunted by litigation’s staggering cost, the months spent in court, and the mutual antagonism of the former spouses after a trial, more people are turning to mediation. In most cases mediation saves money, time and preserves or improves relations between divorcing spouses. So, are lawyers out and mediators in?
Not so fast. There are many situations in which lawyers can be useful adjuncts to the mediation process without substantially increasing costs. A “mediation-friendly” lawyer can participate in the mediation process at various stages, and in varying degrees. They can be a valuable resource in cases involving substantive legal issues.
Some divorces involve issues of law. A wife might claim inherited property should be treated as solely hers, and not as “marital property”. A husband might claim a gift was made to him only, and not to the marital unit. Cases involving highly-valued assets like multiple businesses can be complex and the parties may benefit from litigation’s rigorous discovery process. Although parties in mediation may, of course, choose to divide as they see fit assuming they agree, it is a good idea for each party to know what their legal rights are regarding these prickly legal issues.
It is often helpful for both parties to consult with a lawyer prior to mediation regarding spousal support (alimony). While the amount of child support paid and received is formulaic, amount and duration of spousal support are determined by several factors. Spousal support determinations are subjective, and how much weight a particular judge accords each factor varies. Some couples consult with lawyer prior to mediation and ask for a ballpark estimate of what their spousal support might look like. Having informed parties with reasonable expectations allows the process to flow more smoothly.
Lawyers can also provide parties with a sketch of possible outcomes if the case proceeds to trial and judgment, in terms of best and worst-case scenarios, and what evidence would be barred, deemed “irrelevant”. (Whereas in mediation, any information the parties want to share can be a topic for discussion.)
After mediation parties are encouraged to bring their tentative agreements to a lawyer to review before they sign.
It is important for parties to be their own advocates vis-a-vis their lawyer, too. Sometimes lawyers, particularly aggressive litigators, will advise a party that if they proceed to trial they can expect to attain a particular asset division or support amount. But it is essential that the party ask the lawyer how long that would take, and how much money in attorney fees the party would incur in order to achieve that result. With matters pertaining to money, it is often far less expensive to negotiate, allocating the money between the spouses (“splitting the difference”) than to pay the lawyer for months to bring the case to trial.
A lawyer who truly advocates for their client will respect the party’s desire to try a non-adversarial approach before resorting to litigation.
Many non-complex divorce cases (and almost all cases regarding parenting plans) can be resolved without lawyers in the mix. But for those others, a mediation-friendly lawyer can be a valuable addition to the mediation process.
