I’ve heard it as an attorney representing clients, “I want my day in Court.” As soon as I start talking about the cost of going to trial, suddenly mediation sounds like a good idea. I now primarily mediate family law cases rather than representing clients in family law matters. As a result I have a good grasp of Mediation v. Trial and what parties can expect. Here is why mediation is preferred over going to trial:
Simply put, trials are expensive. In family law matters sometimes trial means two trials or more. In family law matters, often times when the case is filed a request for Temporary Orders is made. This is to figure out what how bills will be paid, who will live where, and what we are doing with children during this time. If a hearing is had for Temporary Orders it is often a “mini-trial” of the case. This means, trial preparation time for the attorneys, trial time, and time off work for preparation and trial. All of this becomes costly. Many divorce cases can exceed $50,000, even for an average estate.
Mediation, in contrast, is generally a 4-8 (though sometimes longer) hour process where a mediator listens to both sides individually. As the mediator gains knowledge of each side, the mediator can help the parties formulate a solution. Generally there is less preparation time for the attorneys for mediation and less time than a trial takes. Mediation v. Trial means mediations generally cost less.
Filing a family law case will start the process of a case, however, it is up to the Court as to when your final trial date is. That could be 9 months, 12 months, or sometimes even longer. Going to mediation first can reduce that time dramatically. In divorce cases that time could be reduced to the minimum 60 days. In other family law matters that time could be reduced even further.
How, you ask? Well, in divorce cases there is a 60 day waiting period before a divorce can be finalized. Going to mediation first and resolving all issues means you can file your Original Petition for Divorce, draft the remaining paperwork, sign, and then appear in Court on the 61st day to finalize the divorce. In other family law matters the Petition/Modification can be filed, paperwork drafted, and often times just filed with Court to finalize (usually can be done in a matter of a week or less).
Further, if you go to mediation and are not able to settle the matter, you have satisfied the Court’s requirement for mediation before trial.
If you settle your disputes in mediation then you had a say in those decisions. If you go to trial, then you put it in the hands of a Judge to decide what is best or right. A mediator does not make the decisions for you. A mediator merely makes suggestions. It is up to you to agree to make those decisions. If you wait for a trial, the Judge makes that decision.