Mediation v. Litigation

(originally posted www.philipjbyers.com on February 16, 2012)

There are many benefits to ADR, otherwise known as Alternative Dispute Resolution.  The procedure is more civilized.  Lawyers can be involved and participate in the process.  The better mediators encourage the parties each get an attorney.  The often asked question is why do you want an attorney if you are doing mediation?  The simple answer is that the mediator’s role is to facilitate an agreement or at the very least a simplification of issues in contest.  However, the mediator cannot offer legal advice to either party, and independent, competent legal advice is highly important in negotiating a divorce agreement.

The parties are required to prepare documents that are similar to what is required by the court: a financial statement listing the assets, income, weekly expenses and debt. A good mediator raises the issues that need resolution from children’s issues, to division of property to alimony.  The process can result in a comprehensive agreement that deals with all of the issues of people who no longer want to live together.

At the conclusion of mediation, if it has been successful, the parties have a signed agreement which can be presented to the probate court, along with a current financial statement, a joint petition for divorce and an affidavit of irretrievable breakdown.  The process rarely concludes with warm feelings emanating from the divorcing parties towards each other.  I find if parties can act in a civil manner towards each other, the process has done little damage.

So why do so few people opt for the sword instead of the lily?    Why do people end up in court instead of the mediator’s conference room?  After many years during which I have practiced divorce law, there are very few cases that lend themselves to mediation.  Why do I say that?

Mediation means putting anger aside and trying to work with soon to be exiled partner.  Mediation requires full financial disclosure.  Mediation requires the willingness of both parties to be fair.  Mediation means doing the right thing by your children. If any of these requirements is missing, mediation is a waste of time.  Mediation requires a level playing field where one spouse is not going to bully the other.  The difficulty with that requirement is that during the marriage, one spouse may have been a bully, and it is easy for that type of conduct to resume during the divorce.  If one of the parties is intimidated by the other, mediation is going to fail.  In such a process, if one of the parties feels frightened by the other, rest assured that any agreement coming out of those sessions is going to be one sided.

Mediation requires full disclosure.  If one of the parties is going to be defensive and obstructionist about disclosing information, an agreement derived from that type of process will be incomplete.  For instance, a typical case involving obstructionism concerns closely held businesses and their valuations.  Another example involves inheritances received by one of the parties.  Yet another example is when there has been physical or emotional abuse by one party against the other.

Litigation, as heinous as it sometimes is, if handled in a professional and competent manner, can force the offending party to provide the information required to properly value the marital estate.  Litigation can provide for non-abuse orders if appropriate.  Litigation can protect the interests of the minor children.  And lastly, but perhaps not finally, litigation can result in a settlement.

You may need the court to get the appropriate orders, and your spouse may come to the table kicking and screaming.  But he/she will come once the information you need is obtained, once the protection you require is ordered.  In other words, if you cannot mediate in the first instance, litigation may allow you to obtain a level playing field that will finally bring sanity to the process.

And if you cannot settle your case for all the above reasons, based upon intragenic behavior of one or both of you, that is what the court system is about:  an evidentiary hearing, otherwise known as a trial, where evidence is offered via testimony and exhibits to try to persuade an objective finder of fact the righteousness of your case.  The rub is that the probate court judges do a yeoman’s job, notwithstanding budget slashes and lack of manpower, but few proclaim themselves to be genius.  The often stated wisdom by a judge prior to the commencement of trial is that “neither of you will be happy with my decision”.  Another commentary that I heard from a very wise Justice was “people come into my courtroom with shoes that fit, and then leave my courtroom with shoes that do not fit so well”.

I guess the bottom line is mediation is preferable to litigation.  Mediation is less expensive and less destructive.  But you married the problem you are now divorcing, and as stated, mediation does not always work.  Mediation is not always effective.  And so you need the sword of litigation to bring order and sever the tie.

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Tags: contested, uncontested