When clients visit my office for an initial consultation about their impending divorce, they invariably ask about the benefits and pitfalls of mediation. Over the last several years, the use of alternate dispute resolution in divorce and other litigation matters has increased in popularity. This is due to the widespread belief that staying out of Court is a cheaper and faster way to resolve most legal disputes. While this is generally true and while mediation may help parties reach that goal, it is not the answer in all situations. Let’s examine some of the myths and truths about mediation:
1) Mediation Will Save Me Money – While it is true that the cost of bringing a divorce case to trial can be quite expensive, attending mediation is not always a cheaper alternative. In a mediation setting, the parties pay a mediator a designated hourly rate. Depending upon the number of sessions that the parties meet with the mediator and hours that the mediator spends reviewing their case and/or drafting a settlement agreement will determine the ultimate cost. In addition, parties are also advised to hire their own independent lawyers to review any proposed agreement arising out of mediation on each party’s behalf which is another cost. Moreover, if the mediation proves unsuccessful, the parties are back at square one, facing possible litigation, after having already spent the cost of mediation;
2) Mediation Will Get My Divorce Resolved Faster – Many clients believe that mediation is the key to a quick resolution of their divorce. This is certainly true if both parties are amicable, there is minimal property to divide and both are like-minded in what constitutes a fair division of that property. In fact, if these factors exist, mediation is not even necessary – the parties can resolve their issues directly with the limited assistance of counsel. In most instances, however, parties are not like-minded (which is why they are divorcing in the first place), do not have minimal property issues and are not amicable. This is not to say that most divorces will not resolve – they usually do by mediation or by settlement at some other point – just that going to mediation alone, will not in itself speed up the process and in some instances can slow it down if it proves unsuccessful;
3) Mediation Is A Less Adversarial Way To Get Divorced – The idea that mediation is a gentler, less adversarial way of getting divorced is true. That is, if it works. Again, if both parties are committed to the mediation process and determined to resolve their divorce in this manner, they have a greater chance of success than those who believe that mediation alone will make them gentler and less adversarial. Those who think that mediation in and of itself will make the differences that caused the breakdown of the marriage magically disappear and will allow the parties to agree to a distribution of assets for the greater good of the family are often sorely disappointed. Mediation by its nature requires parties to agree in order to work and if they are not able to agree, then mediation is not the answer;
4) The Mediator Replaces The Judge– Some clients have the false notion that the mediator essentially operates as a private judge and will make decisions for them to resolve their divorce. This is not true. Binding arbitration is a type of alternate dispute resolution where parties agree to submit their case to the arbitrator to decide their issues. It is not the same as mediation. In mediation, the mediator acts as a facilitator to help parties reach an agreement. The mediator does not “decide” the case for the parties, and in fact, should remain neutral in helping parties reach agreement. The potential problem is that if parties do not agree, the mediation does not succeed.
5) Mediation Helped My Friend So It Will Help Me – One of the most difficult questions that clients pose is why some tool like mediation could help a friend, relative, etc. and not help them. Clearly, it is understandable how someone would want a simple solution to their divorce that worked for someone else they know. However, as I routinely explain to clients, each divorce case is unique and must be evaluated on its individual merits. There is no one-size-fits-all resolution to divorce cases. Parties are wise to review their options with counsel and take the path that seems right for them – even though it may differ from that of their friend, neighbor or relative.
It is certainly beneficial that clients have a wide variety of choices in trying to resolve their divorce, mediation being one of them. This takes pressure off the over-burdened Court system and gives parties a modicum of control in a situation where they often feel so out-of-control. However, before embarking on the mediation path, it is critical that parties fully understand the process and the chances of success in their particular situation. Hopefully the tips above will at least give parties some issues to consider before moving forward. What is most important to keep in mind is that most divorces do resolve at some point with or without mediation. Getting wise counsel in helping to navigate the system and decide what path right for you in your matter is most critical in saving time, money and aggravation