Hire and Attorney but DO NOT LITIGATE

Hire an Attorney but DO NOT LITIGATE

Divorces are complex matters in which a lot of high impact decisions regarding parenting, finances and property have to be made.  For many, those decisions are made during periods of great emotional stress when negotiation and compromise are more difficult.  This is why I recommend that clients hire an experienced attorney who knows the laws and can provide advice.  Mediators certainly know the laws well enough to assist with development of a settlement that will be acceptable to the courts, but they must remain objective at all times and can never provide legal advice.  A good attorney should empower you with sound legal advice but more importantly a good attorney should recognize that litigation is rarely in his or her clients best interest.  This is why I try to discourage clients from “lawyering up” which I associate with a counterproductive aggressive posture.  

Most people are aware that successful mediation spares clients the time and expense of litigation.  Attorney’s fees are high and pile up quickly and the resources in the court system are stretched extremely thin.  What many are not aware of is that mediation offers divorcing parties much greater control over the immediate outcome as well as the long-term outcome.  Mediation is an opportunity to craft a settlement that best fits a couple’s shared priorities around parenting and marital property while also addressing the individual priorities through a process of facilitated negotiation.  The court system rarely has time for this sort of customized approach.  Perhaps more importantly mediation has been shown to produce better long-term outcomes.  The Divorce Mediation Study by Dr. Robert E. Emery compares the long term outcomes of couples who used mediation and couples who used an adversary system.   These couples were followed for up to 12 years in order to monitor the durability of the settlements.  The results indicated that:

1.     Mediation kept families out of the court system.

2.     Couples who mediated had more productive and functional parenting arrangements.

3.     Among couples who mediated, non-residential parents had approximately 4 times as much telephone contact with their children than couples who l settled via the adversary system.

4.     Couples who mediated often “graded” their co-parents more favorably than couples who settled via the adversary system.

These long-term outcomes not only best serve the interests of the children but also help to promote a more respectful and amicable co-parenting relationship.  I encourage all couples considering divorce to read the results of Dr. Emery’s research.