After more than 22 years as a busy litigator, I have concluded that divorcing couples should strive to avoid litigation at all costs. The drawbacks to litigation are well-known: it is risky, time-consuming, polarizing, emotionally draining, frustrating and, in my firm opinion, needlessly expensive. More often than not, litigation results in a settlement that could and should have been achieved without either party ever having set foot in a courtroom. In my professional view, most couples should make every attempt to mediate, or collaborate, before choosing the costly and uncertain alternative of litigation.
What is mediation? It is a series of meetings with you and your spouse together in the presence of a person, preferably an attorney (the “Mediator”), who navigates you through the issues and works to help you find common ground. The Mediator remains neutral during the process and does not make any decisions. Rather, the decisions are made by the couple with the Mediator acting as their guide. Because the terms are dictated by the parties themselves, the final product - a binding settlement agreement - reflects what is important to them and is particularly suited to their unique needs and goals and the well-being of their particular family.
Unlike in court where the rules of evidence, time constraints and the process itself often restrict the parties from speaking their mind and being able to fully tell their side of the story, in mediation no topic is “irrelevant”. No feelings are “immaterial”. No view or opinion is discounted because it is “speculative” or “hearsay” or “objectionable”.
The goal in mediation is for both parties to air their grievances, to listen, and to understand the other’s concerns. Once that is accomplished, what seemed at first blush a “major impasse”, becomes, in my experience, resolvable in a very civil and respectful way. In the end, the cost is a mere fraction of what the couple would have spent to resolve their case in court.
The mediation process encourages understanding and cooperation and lends itself to preserving a civil relationship between the parties that can prove invaluable to them and, more importantly, to their children.
Unfortunately, litigation often achieves just the opposite result.