The case for litigation
Many clients often ask about mediation. They want to know how it works and if it is appropriate for their case.
Many clients approach divorce with an optimistic attitude, insisting they want to keep the process amicable. Many clients insist that they do not want to file and want to work everything out outside of court. Some divorces lend themselves to this approach but many do not. The divorce process is very challenging and is often fraught with delay due to the nonparticipation or cooperation of one of the spouses. One benefit of filing is that there are deadlines imposed by which various things need to be accomplished.
There are certainly benefit to divorce mediation, conciliation, collaborative law and related practices to achieve divorce in a harmonious and peaceful manner. Those avenues are certainly optimal in situations that lend themselves to such processes – that is, in situations where spouses still have some respect for one another, some trust in one another and where there is little power imbalance. But their effectiveness is diminished in situations that are fraught with animosity from the outset due to a spouse’s affair, financial misconduct, mental illness, addiction, or a unique legal issue that lends itself to differing legal interpretations and potentially vastly difference financial outcomes. In these situations, despite good faith efforts, mediation often fails, leaving the spouses further disenfranchised and forced to hire a divorce litigator after having wasted money on what they perceived to initially be the more optimal route. The reality is that a significant number of parties to a divorce are not candidates for non-binding mediation and for them, litigation is the optimal way to progress their case. Clients usually do not appreciate this at the outset of a divorce.
For these reasons, our firm primarily litigates as we find that it is the best means to and end. None of us are litigious by nature, but instead we approach each case in a conciliatory manner, but have the skills to advocate strongly in court or go to trial when necessary. That is not to say that divorce litigation is without its problems. In fact, it is so fraught with problems that what should be an efficient process – getting into court when there is a stalemate to get a result – is inhibited by crowds, delays, disruptions, lack of court funding, resources and adequate technology, disgruntled court employees, overworked and unpleasant attorneys, and pro se litigants. This is where alternative dispute resolution, including mediation, conciliation and arbitration can bridge the gap. For example, in the process of litigation, parties through their counsel can choose mediation, conciliation or arbitration with a third party to assist in the resolution of the case. We act as mediators, arbitrators and conciliators for other counsel and parties and we also participate with our own clients in such processes in order to reach resolution. Barring resolution through these avenues, the court is still available to bring the matter to final resolution.