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Divorce Mediation Makes Sense Even with the Recalcitrant Spouse

Traditional litigation lawyers and parties are in adversarial roles. You can imagine that if one company sues another over trademark infringement for example, the case begins as a zero-sum game with a winner and a loser. It’s true most cases settle, but the mindset of the litigants is one of war.

This can be the mindset in divorce as well, but it’s not an ideal approach. An alternative is for the parties to engage an attorney mediator and use the mediator to guide them to an agreement on the issues they face in the divorce.  The parties are apprised of their rights and obligations with respect to the division of property and debt, child custody and child and spousal support (alimony).

The parties and the mediator work in good faith to reach agreements on all issues which satisfy both parties. Then, the mediator prepares the necessary pleadings, agreements and paperwork and files them on behalf of the clients. The clients can act in propria persona which means they are not represented by an attorney in the divorce. They are free to seek counsel from a lawyer other than the mediator during the process. Alternatively, the parties can retain counsel who may participate in the mediation.

The mediation approach is much less expensive and much less emotionally taxing. However, both parties need to be committed to reaching a fair agreement and neither party can have ulterior goals, such as using the divorce process to punish the other spouse. Not all divorce matters are well suited to a mediation as described.

There are many factors which might make the divorce unsuitable. Legitimate disputes about child custody, complex property rights claims are problematic. If one spouse is dishonest about finances or if one spouse refuses to accept the reality of community property a mediation may not work. Even so a different type of mediation can benefit the parties in many cases in which each spouse has retained counsel.

In disputed divorces the parties often agree on some things. The issues upon which they disagree can be addressed in a mediation in which a mediator is hired to mediate and each spouse remains represented by trial counsel. In my experience the mediator can often bring to light points of law. Apply the relevant law to important facts and give the parties and their lawyers insight into the likely outcome of a trial.

While this process can be expensive, the cost much less than that of a trial.  For example, a contested child custody battle is likely to involve expert witness testimony. Complex issues relating to businesses owned by one or both spouses will require forensic accounting experts. The cost of the trial is great. The cost of preparing for the trial is usually greater still.

When one takes into account the costs of expert discovery and trial it almost always makes sense to attempt mediation. If it is unsuccessful the mediation will provide the parties and their counsel insight on the strengths and weaknesses of their case.

For more information or to discuss your matter contact the author.