You decide that you cannot go on any longer and it’s time to call it quits and get divorced. You ask the right questions and find an attorney who understands what you’re going through. You’ve only heard of divorce summonses and trial dates and going to court, but now this attorney tells you about other options, such as mediation and you are confused. (For the option of COLLABORATIVE PRACTICE, see our website under “Litigation”)
So, why should you choose mediation over litigation?
When you choose litigation, it is as if you are entering the cage of a man-eating lion. You may or may not be eaten, depending on how hungry the lion is. The point is that the initiative has passed to the lion. You are not in control. The lion is.
This is the same as in litigation: the rules of court take over and determine what must be done and when it must be done. It is also a very adversarial arena. My clients often feel as if they are being dragged along the route helplessly and they just want to pause a bit and take a break, but that is not possible, because the other side is not going to take a break. You have chosen your weapon and you have to see this fight through to the bitter end. The costs are mounting up and you don’t know when it will end. Since attorneys and advocates charge on a time basis, they are genuinely not able to tell you how much the whole case will cost, because the other side may choose to bury you under the paperwork or use delaying tactics and your attorney has to act on this.
Mediation is almost the opposite: you and your spouse or partner remain in control of the process. You can choose a mediator whose fees are affordable. You can choose how many sessions you need. You can choose the pace at which the mediation process proceeds. Also, and very importantly, the mediator makes no decisions – the two of you do.
For some people the most important factor is that your financial (or other!) affairs remain confidential and private. For other people, the fact that you as parents can communicate means that the children will not be harmed in the process. The best of all is that you share the costs of a mediator, instead of each of you paying separately for two attorneys (and sometimes also for an advocate).
There is only one disadvantage to mediation, namely that it is voluntary. This means that you cannot force the other party to agree to mediation. However, the good news is that there is the threat that, if the other party refuses to agree to mediate, the court could make a cost order against that party.
Elmarie Neilson of Neilsons Attorneys, is a mediator and collaborative attorney.