As both a divorce attorney and mediator, I believe that divorce mediation is best-suited for the majority of the divorce cases that come across my desk. With that said, there are instances when divorce litigation is the more useful tool in the resolution of a divorce. In my previous post on the subject of divorce mediation, I described times when divorce mediation was the better option– here are a few examples when it is not.

If you believe your spouse is being dishonest or disingenuous

On some occasions, your spouse may attempt to hide assets or fail to be honest in his or her negotiations. If you think that your spouse is not transparent in a mediation meeting, you should consult with an attorney to explore other options such as traditional litigation. In litigation, there are certain safeguards that are meant to discourage such behavior, such as the court-ordered full disclosure of property, debts, income and expenses. If your spouse were to offer incomplete information or conceal information in these disclosures, he or she could be subject to sanctions or penalties and could potentially be indicted for perjury. If your spouse’s transparency is in question, mediation is not an option for you.

If you feel pressured or bullied by your spouse

In divorce mediation, it is the job of a mediator to ensure that the needs and concerns of each spouse are heard. I pride myself on neutrality and equality, and I ensure in each session that neither side is bullied by the other. However, your mediator cannot be with you outside of a mediation session. If your spouse attempts to intimidate, bully or pressure you, the best response is to seek a lawyer to represent your interests.

If you think your spouse is fixated on a mission to defeat you, or to marginalize your interests altogether

Mediation is a collaborative process for problem solving. The goal of any mediation is a settlement. The process does not concentrate on assigning guilt or blame. It is not about one spouse “winning,” or defeating the other. If you believe your spouse seeks to trivialize your claims and concerns, then mediation is destined to fail in your case. By its nature, mediation is about two opposing parties coming together to forge an agreeable and long-lasting settlement.

In my law practice at Comerford & Dougherty, LLP, I meet with many clients who are facing the prospect of a divorce. Some come to me already having heard something about “divorce mediation” as an alternative to a traditional litigation. The number one question they ask is, is divorce mediation a better choice than litigation for me?

If this sounds like a scenario you yourself might be facing, consider the following. There are three main variables that factor in to the divorce process when comparing the options: party control, time, and money. In this post, we’ll be exploring each in more detail.

Control

Parties who choose divorce litigation are choosing to hand the control of their case to a third-party decision maker (the court, or more specifically, a judge). Even after extended courtroom sessions and countless meetings at attorney’s offices, the results of a divorce litigation are still very unpredictable.

Parties who choose divorce mediation are choosing to maintain control over their case and its outcome. They are able to determine their own path forward and feel empowered to design a resolution that benefits them.

Time

The Unified Court System Annual Report provides that there were 474,440 civil filings in the NY State Supreme Court in 2010, including 45,618 newly filed uncontested matrimonial cases.This is a staggering statistic when thinking about how it plays a role in clogging the Court’s calendar and what it means for the length of your case. I’ve seen divorce litigation cases drag on for years.

On the other hand, parties who choose mediation are not controlled by the Court calendar, and simply have to choose a mutually-convenient time for themselves and the mediator. In my experience, most clients see their issues resolved in 8 to 12 hours of sessions, depending upon the complexity of the issues they are confronting.

Money

Additionally, when going through a litigated matrimonial, there are many legal procedures that must be strictly adhered to. These practices take a great deal of time to complete and can result in substantial legal fees. In New York, that usually means tens of thousands of dollars per-party.

The procedural rules in mediation are much more flexible, and the parties decide what information they need to make an informed decision. Additionally, mediators charge only for the time spent in-session with the parties, time that’s spent directly helping to mediate their case.

Conclusion

With all this acting as a strong case for a mediated divorce, the Courts themselves are now discovering and extolling the benefits of mediation. In fact, the New York Court System has created rosters of mediators who are directly referred cases. They’ve even created a helpful website solely dedicated to providing information on alternative dispute resolution.

Still, we want to present the full picture to someone facing the prospect of a divorce, and there are times when mediation simply isn’t the best or most appropriate choice. We’ll discuss other examples in an upcoming post.

Welcome to the website and mediation blog for Dougherty Mediation Group! We’re a leading provider of mediation and alternative dispute resolution on Long Island, New York. Read more about us.

Stay tuned to this blog for useful information on the legal issues that most pertain to you. Here, we’ll spend time informing you of how traditional litigation and mediation compare when it comes to divorce and family law cases. We’ll also provide reactions and insight into major mediation examples in the news and public spotlight.