Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Tuesday, January 19, 2010

Why Divorce Mediation is a Fraction of the Cost of Lawyer-Led Negotiations & Litigation

Litigation is the most costly of all process choices for separation and divorce when the parties are represented by attorneys. In litigation, your separation and divorce issues are examined and decided in a court of law by a judge. In fact, it is so expensive that it is all but out of the reach of typical divorcing couples. To meander this system, papers are researched, prepared, reviewed and filed. There are multiple trips to the courthouse, for motions (i.e. to seek more disclosure from a party or to complain of late disclosure), multiple hearings (i.e. a temporary order to determine things like custody pending the final trial), and multiple settlement and administrative phone calls, and meetings (i.e. the court scheduling conference, the court settlement conference.) When both parties are led by attorneys through the court system, two attorneys are paid from the single pot of assets (i.e. the equity in a home, your savings, etc.) and/or the incomes of a single family to assist the parties through every step. There are also extensive costs: multiple appraisals (disputes on values of assets), child experts (for hotly contested custody cases, including perhaps hiring yet another attorney to represent the children). And these are just the financial costs. The emotional costs to families would take another 100 blog entries and then some.

Imagine a single hearing in court. You've met with your attorney to prepare for an hour; your attorney travels back and forth, and perhaps prepares papers or researches an issue (another hour), you wait for your turn (another hour) and then you have your hearing, you speak to your lawyer about the outcome and your lawyer probably has a separate conversation with the other lawyer all for at least an hour (and this is an extremely conservative estimate). One hearing has now cost both parties eight hours of attorney time, and at least $2,000.00 has been spent. We haven't even added in the parties' costs of being absent from work. Again this is conservative. And the worst part? Very little ground has been covered and the case is only inching towards conclusion. Mediation costs are a very small fraction of litigation costs. Parties can go a long way in four hours of mediation.

But what about attorney negotiations versus direct party-to-party negotiations in mediation? Most of the parties' issues revolve around topics within the parties' unique expertise. If you feel that you are unable to negotiate effectively for yourself then you may have no choice. However, that would mean you would have to educate your lawyer on how to negotiate the topics for which you are the expert (i.e. your child's life; how much your food, clothing, etc. costs may be.) You will direct your attorney to say what you want and need. So who is really the "expert" on what you want and need to live every day after the signed Agreement?

If you think that with guidance of a neutral third party (the Mediator) you can: Determine your children's overnight schedule, decide who makes the decisions about the children's health and educations and religious upbringing; Determine who should live in the family home or whether it should be sold; Determine how to divide your furniture and "stuff"'; Figure out your living expenses and needs, and; Determine what you own and what you owe; then you are equipped to have these negotiations with your spouse at a fraction of the cost of attorney-led negotiations.

Just imagine discussing your Christmas Eve/Day custody arrangement. Does one party traditionally go out-of-town? Who must do the driving? Will the first year (when the children and the parties are most unsettled) be different than subsequent years? Are we splitting Christmas Day and Christmas Eve? What time for the transitions? If one party has Christmas, does the opposite party get Thanksgiving that year or New Year's? Typically in an attorney-led negotiation, one party might tell his/her lawyer "I want Christmas every other year." This is often conveyed via phone call or letter outside of the clients' presence. Neither party is there to gauge the other party's response to the request. Often the request is met with hostility that is allowed to fester, as opposed to the topic discussed in mediation, where the hot-button issues are immediately hashed out. Here's an illustration of a mediated issue:

Spouse A says: "I want Christmas every other year."
Spouse B responds: "What? You've abandoned us and now you are taking my child away on Christmas? Why don't you just shoot me???"
Mediator: "What if Spouse B gets the first year?"
Spouse A: "Fine."
Spouse B: "Great! You plan to abandon the kids on Christmas! They cry every night, and ask me why you left!"
Mediator: "What if the first Christmas is split and then alternated with Spouse A getting the second Christmas?"
Spouse A: "Fine."
Spouse B: "Fine. So long as I get Christmas morning!"
Spouse A: "Fine."

The Mediator and the parties understand the true interpersonal dynamics going on here. Spouse B does not want this divorce. Spouse A does. Spouse A wants alternating Christmas, but hears and knows the emotional gauge of Spouse B, and probably feels compassion or fear that Spouse B's emotions may be hard to control, which is true. People with out of control emotions may non-rational choices. In this scenario, the "hurt" party is given 2 years of Christmases to adjust. Not only that, but Spouse B experiences that Spouse A has made multiple compromises on the issue, which makes Spouse B feel better. Spouse A still gets what Spouse A wants- alternating Christmas. This is a typical kind of emotionally intelligent compromise.

But imagine this same scenario in a lawyer-led negotiation. Let's assume that since Spouse A wants the divorce, it is Spouse A whose lawyer initiates with a letter:

"Dear Spouse B's Attorney:

....of course Spouse A seeks alternation of the major holidays. Please review this with your client with your response..."

Now Spouse B's attorney reads the letter (at the billable rate). Attorney for B now calls Spouse B to convey the offer (at the billable rate). Let's assume that many things in the offer may be acceptable. But then the Christmas issue sets Spouse B off!

Spouse B (in consultation with Spouse B's lawyer): "Will I get the first Christmas? The kids will want to see Spouse A on Christmas! That jerk could care less about seeing the kids! The way Spouse A is treating the children, who knows if they'll want to spend any Christmas with Spouse A! I want to see my children every Christmas, which is what would happen if Spouse A honored the marriage vows! Tell Spouse A this is the choice he/she made!"

Spouse B's Lawyer intervenes: "Well Spouse A would get every other Christmas in Court, I'm afraid. So you have to agree to this."

Spouse B is now infuriated by the injustice and says: "Well good, then forget the part about college or maintaining life insurance! I don't have to do that under the law do I?"

Spouse B's Lawyer: "Well no. But why not do so if you are going to anyway?"

Spouse B: "Forget that! I have to live without my kids on Christmas, so I'm not promising anything to make Spouse A feel more secure! If I want to contribute to college or keep life insurance, I will. I'm not promising anything. Spouse A is getting this separation, isn't that everything he/she wants and I have no say about that do I?"

How does Spouse B feel? Does Spouse B feel he/she can live with the resolution? No, the thought of paybacks and injustice permeates Spouse B's thinking. And Spouse B's emotional state deteriorates with each such blow. Yet when, in the same scenario in mediation, Spouse B knows that Spouse A has "heard" him/her directly, the result is an agreement that both parties feel they can live with. This doesn't mean the divorce is now "good." It just means that the parties have negotiated a highly charged emotional issue successfully- meaning the best result under the circumstances. They each feel the compromise and understand the emotional balance of it. This emotional balance is what keeps the mediation negotiation on a forward path. The emotional spite response is typical when information is conveyed in traditional litigation methods. It creates road blocks and obstacles. In my lawyer-led negotiations, the response might have been, for example:

"Dear Spouse A's attorney:

My client agrees to alternate Christmas so long as he/she has the first Christmas. However, there will be no written commitment to college and life insurance obligations, which of course Spouse B is not obligated to do under the law. "

"What???" Thinks Spouse A? Spouse B is not going to pay for college? Not keep life insurance? Since when? This is what Spouse A hears. Spouse A doesn't hear the reasoning or the thought process. Spouse A, formerly feeling contrite and perhaps generous has now changed gears to righteous indignation about Spouse B who seems to be backing out of long-established college funding issues. The negotiation has actually taken steps backwards. No wonder the negotiation takes longer, is more contentious and produces less satisfying results!

Of course, receiving legal advice is often necessary. An independent review of a final Agreement is definitely a must. However, a few well-placed legal consultations followed by knowledgeable direct negotiations, and a check of the final Agreement, still ends up as a fraction of the cost of using two attorneys to negotiate these items for you. The satisfaction between the parties is more than a plus. It's a plus, plus, plus. It sets the tone for continuing as a family, albeit in a different structure.

Yes, you must know if you are entitled to support, if you are entitled to stay in the family home, but once you know your rights and obligations, why can't you negotiate yourself? Alimony, a wild card in family law, starts with an analysis of what each party's expenses are, to determine needs and the ability to earn/pay of the parties. Should you pay your attorney (or his/her paralegal) to gather your expenses and do the math for you? Won't you have to educate your attorney/paralegal about those expenses to impart an true understanding of your credit card charges, etc.? Who has a better understanding of these facts, you and your spouse or your two attorneys? What about division of furniture, is legal advice necessary to achieve a fair result?

In short, using mediation, (even in conjunction with attorney consultations and Agreement review) is still a fraction of the cost of attorney-led negotiations leading to an Agreement. Stay tuned for another blog one of these days, explaining the frustration of having someone negotiate for you on topics for which you and your spouse are the experts- i.e. your children, your house, your finances.

Put that aside for this day, and think long and hard about what dividing a family in two is really all about. Emotions and a fairly simple financial division. A child support calculation. The issues are typically non-complex. There's frightfully little money to waste in separation and divorce matters- so don't waste it. Does that make sense? Mediate.

http://www.nancycaplanmediation.com/. A fraction of the cost for a better result.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

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