“I am going to take you to court!”
It is a sentence that easily rolls off the tongue, especially when a divorce begins to get rough. We have all heard it countless times from our friends. Or in movies. Oh, those courtroom scenes where the wife gets to see her cheating husband take the stand. Or a judge lambasting a woman who spent her husband’s money with wild abandon for years. Yes, justice will be done! All you want to know is where you can sign up.
Not so fast. Though going to court can be the answer you need to reach a divorce settlement, it is not the only answer. Despite how advantageous litigating your case may seem, going to trial should be considered a last resort after you have resolved all other alternatives. And there are alternatives, some of which are more effective than others.
The alternative dispute resolution I prefer most is mediation. Mediation takes place outside the courtroom. A neutral third party called a mediator listens to both sides and makes suggestions as to how the divorcing couple can find a solid middle ground. Mediators are not necessarily lawyers or retired judges. They can be social workers or mental health professionals as well. Whatever the background, he or she should be familiar with issues relating to divorce and skilled at coming up with creative solutions which will lead a disputing couple to an agreement.
Any issues discussed during mediation, including settlement offers, are confidential and cannot be used against the opposing party should discussions ultimately break down. Attorneys need not be present during a mediation either, though many couples find it beneficial to have their lawyer with them, particularly if the opposing party will. Aside from lending moral support, counsel can pinpoint new issues needing attention. If you do decide to mediate without your attorney there, I strongly advise seeking legal advice before entering into any binding agreement.
If taken seriously, mediation can save a couple a lot of aggravation, time, and money during their divorce. Think about it as a formal discussion. Each party gets to raise those issues he or she finds most troubling. Though a couple may not believe so, at this juncture of their proceeding, they are still very much in control. The couple sets the stage, and the mediator walks onto it. The recommendations a couple receives are just that -- recommendations. They are not binding to either party and are open to input from both sides. Once a couple takes their issues to court, the judge decides and what he or she says goes.
Courts are crowded, and dates can be hard to come by. Not to mention, in the court system there is a lot of opportunity for postponements by either side and other court-related delays, which can cause a divorce to drag on much longer than it should and both parties would like. That can be stressful, not only because of the emotions involved but also because of the legal fees that continue to accrue in the interim. Mediation can avoid much of that, so even if your state doesn’t require it, you might want to consider still giving it a try.
Perhaps the best part of mediation lies in the peace of mind it can bring post-divorce. No divorce settlement will ever be a total windfall for either party. However, by remaining involved actively in the negotiation of their divorce, either side has a greater likelihood of walking away feeling satisfied with the settlement they got because they (not only their lawyer or a judge) were instrumental in getting it.