Can Mediation Save Money Even if Parties are Substantially Involved in Litigation with Attorneys?
Yes. Mediation can be cost-effective option during the litigation proceedings, just as any good faith settlement attempt is always a worthy goal when compared to the emotional and financial costs of the separation or divorce process dragging along in the judicial system.
Sometimes the filing a law suit against your spouse may have seemed like a good idea at the time of filing followed by a realization that it was not a good idea. Perhaps you have discovered that the adversarial attorney negotiations and/or the court process are inefficient and/or inflammatory.
A party may have filed a lawsuit because the spouse left him or her without any other option. However, the experience of litigation may change minds as emotions escalate and/or legal fees soar. Sometimes a spouse who was reluctant to settle may be agreeable to mediation during the litigation. Therefore it is never too late to request mediation. Even if you’ve requested mediation in the past and the suggestion was ignored or denied, you can ask again. No one is immune to the pressures of court deadlines and procedures, legal fees and the personal participation required to participate in litigation. Parties generally become more amenable to mediation and other settlement processes the longer the litigation goes on.
Many times a person is so angry or hurt when faced with a separation or impending divorce decision that filing a law suit felt like a good way to inflict harm to your spouse. Perhaps your spouse would not attend mediation or agree to any sort of negotiation at all and you had no other option (or so you thought). Perhaps you were so fearful, you felt as if you could not negotiate on your own. Perhaps you simply didn’t realize there was a better way to obtain a divorce.
If you are litigating because there is a high value to the assets or financial complexity, then ask your attorney to request mediation after the discovery process is complete. While the Court will schedule a settlement conference to help the parties to settlement, the settlement conference often does not provide real time it may require to reach a complete settlement.
If your family funds are running too low to continue to pay your lawyers, it is up to you to be honest about that and to ask them to seek out a more cost-effective way to settlement. That way is mediation. Even if you have the funds to continue to pay the lawyers, but you see the wisdom in settlement out of court, you must take control of your matter and direct your lawyer to request mediation. Attorneys are often present for mediation sessions which occur in the heat of the litigation. However, assuming no special complexity to the financial matters, and if litigation deadlines are not pressing, the parties can mediate on their own if they both agree to do so. If the mediator helps the parties reach settlement, the mediator can draft the settlement agreement for the parties’ attorneys’ review.
Mediation is tool to reduce legal costs in legal disputes. When it is used, before or during adversarial negotiations and/or litigation; and how it is used, after informal discovery or after formal discovery is a different question than whether it should be used. In a huge number of matters, using mediation simply makes financial sense. However, the emotional toll of adversarial negotiations and/or litigation should also be factored into your equation whether to avail yourselves of mediation during litigation. It is hard to put a price on stress, and that price varies with each person. Mediating a matter already in divorce litigation or co-parenting custody litigation is often a huge relief. Relieve your stress- mediate.