I. Why is Mediation today so popular?

LITIGATION for decades was the traditional legal form for resolving divorce or other family law disputes or conflicts between parties. Each party was typically represented by lawyers. The lawyers engaged in pretrial discovery that may include interrogatories, production of documents and depositions of witnesses before the parties ever engaged in settlement negotiations. If settlement negotiations failed, the dispute was submitted to a judge who decided the dispute for the parties. This traditional model for deciding family law conflicts created two polarized positions in which each lawyer was ethically required to serve as an advocate to achieve a “best-case” result for only their client.

Litigation typically involves months of discovery with each party hiring their own appraisers to value business, real estate, retirement assets and to trace any premarital or inherited/gifted assets to one of the parties. Separate Custody/Parenting experts are often hired to show why their client should be awarded sole or joint physical custody and why the other parent might not be capable of caring for the parties’ children. In many cases where you have a disparity in income vocational evaluation experts are hired to show how little a spouse may be able to earn to support himself or herself, and the other side hires an expert to show why a spouse may be capable of earning far more than they admit. CPAs/financial experts are hired to examine years of tax returns and records to prepare a “best-case” position for the most commonly litigated issue, spousal maintenance.

Critics of the litigation method for resolving conflicts point to the financial burden to the parties for engaging separate financial, vocational and parenting experts, sometimes called “hired guns”; the significant legal costs and fees; the delays in moving the case to a final determination at trial; and the post-trial motions and appeals extending the costs and further extending the final resolution for months or even years in some cases. For good reason, critics of the litigation model also point to the high level of family conflict and strained relationships that result frequently between parties and attorneys viewed as adversaries either over parenting or financial issues. In such high-conflict litigation cases, the parties frequently continue to resort to more litigation over parenting and financial issues such as child support and spousal maintenance after the trial in post-decree proceedings because they remain enmeshed in the emotional conflict over who won or lost in prior litigation proceedings.

MEDIATION was created as an alternative form of conflict resolution. The core principle of mediation is for the parties to retain control over decision making rather than abandoning that control to a legal system where lawyers and judges are making the decisions for the parties.

• As a part of the mediation process, the parties have the power to choose to preserve their family resources and to enhance their ability to communicate with one another through a mediated process of exchanging information and sharing proposals to promote a restructuring of the family into two households that is designed to meet each party’s needs and the “best interests of the children”. They can avoid the mudslinging and character assassinations associated with ugly custody/parenting litigation.

• Family resources are preserved through a controlled process of acquiring only necessary information and exchanging that information leading to a discussion of options to resolve each parenting and financial issue in mediation. In doing so, the parties can decide “how much is too much or how much is enough” in dividing the property or even their cash flow to support two households whether it is child support or spousal maintenance. Certainly, the parties benefit from having parenting and financial experts, as well as legal representation in most cases but they can agree to engage one expert as a neutral to evaluate either the parenting or financial issues who then reports to both parents what their findings and recommendations may be. The process is designed to be and can be far less adversarial, far less expensive in financial costs to the parties as well as the emotional costs to the parties and their children.

• Decisions by the parties in mediation can be made early in the process and may even promote healing of the family emotional pain through early, low conflict resolution of all issues.

• Mediation preserves the power of the clients to make informed decisions and avoid a legal system in which they submit to the uncertainty and risk of a judge making the decisions for them after each party has expended significant sums of money for financial experts and attorneys to make their “best case” pitch to the judge. Whereas the parties may be financially and emotionally broken in the litigation process, successful mediation will permit them to have closure on the marital conflicts and will leave them in a financially and emotionally healthier position to restructure their lives to benefit them and certainly to benefit their children.