By nature, divorce can be, at best, a difficult and expensive process. From the inherent emotionality of child custody and relocation, to the complexities associated with the distribution of assets and spousal support, the legal costs of dissolving the marriage can leave each party with a fraction of the marital estate they created. Litigation costs for divorce can spiral and balloon, leaving parents no choice but to tap into the college funds intended for their children’s education, unexpectedly burdening children. Factor in time delays and the bureaucracy of the court system itself, the prospect can rapidly escalate from intimidating to outright daunting. Fortunately, less intimidating, less expensive, and less time-consuming dispute resolution options are rapidly integrating into the mainstay of family law. Alternatives for “going to court” exist. Utilizing them can reduce costs, time, and family friction and preserve the marital estate for the post-divorce phase of life. In this blog post we discuss the resolution strategy of Mediation.
Mediation is the process in which couples meet in an informal and private setting with a specially trained third-party neutral with the goal of resolving their differences. The neutral “mediator” facilitates communication between the parties by allowing them to flush out relevant issues and share their perspectives. The mediator then explores settlement options with the goal of reaching an agreement.
The key feature of mediation is that the mediator is a facilitator, not a judge or arbitrator; therefore, she can neither intervene nor make decisions in the event of an impasse. By encouraging creative solutions that may not otherwise be available through the public justice system, the mediation process enables a couple to control their outcome.
After listening to the views of each party—without taking sides—the mediator will propose different alternatives to consider. The parties are required to negotiate in good faith and openly disclose all relevant information. Although the mediator cannot provide legal advice to the couple, she will urge the parties to seek independent legal advice to coach them through the process.
Equipped with an understanding of their legal rights and obligations from their individual lawyers, the parties can proceed on a level playing field, prepared to make competent and informed decisions that will result in an enduring agreement. Parties who have control over their solutions are more likely to honor their agreement, thereby reducing the likelihood that enforcement through the court will be necessary in the future.
With the exception of a “kitchen table agreement,” mediation remains the most cost-effective means of dispute resolution. The lawyers’ role is limited to providing advice and coaching outside the mediation process. The parties will not incur the substantial legal fees associated with litigation, which involves discovery (information gathering and exchange), preparation and submission of legal pleadings and briefs, and court appearances.
Although there will be a cost for the mediator (in addition to the cost of the individual lawyers), the overall cost savings are significant. Mediation creates positive results at a fraction of the cost of litigation. Ultimately, a mediated resolution leaves the parties with the sense of satisfaction that comes from speaking their peace in a mutually respectful forum in which they find and reach a solution on their own.
Disputes among separating or divorcing couples are inevitable. However, relying upon the court system for resolution of these disputes brings with it other problems; namely, excessive costs due to the inherent inefficiencies of court processes. Clearly, as conflict increases, so does cost; but the family law landscape provides options to manage both. Parties can avail themselves of alternatives to “going to court,” as discussed previously, so long as spouses and their respective lawyers keep an open mind to creative solutions. Choosing an attorney who will embrace and encourage these alternatives can be as important as selecting the most appropriate process for the couple’s dynamic and finances. Divorce should not dissipate the marital estate. Fortunately, time- and cost-reducing options are available that can preserve the assets accumulated during the marriage and upon which the parties will need to rely after divorce.
This post is part of the blog series “Choosing Your Approach to Resolution”.
To explore the other topics in this series, view these additional blog posts (coming soon):
Arbitration – Select Your Judge for Final Resolution
Early Neutral Evaluation – Testing the Waters
Collaborative Divorce – Keep out of Court
Cooperative Divorce – Keep Options Open
If you would like to explore your alternative resolution options, you should speak with an experienced West Chester attorney. At Potts, Shoemaker, and Grossman, LLC, our attorneys are prepared to assist you in finding the appropriate resolution approach for your individual situation. To schedule a confidential consultation, contact us at (610) 840-2626.
*This article is an excerpt from the article “Choosing Your Approach to Resolution” as published in Family Advocate, Volume 43, Number 1, Summer 2020 as written by Rochelle “Shelly” Grossman, Esquire.