What to do when you feel stuck in the divorce litigation machine.
Understanding Mediated Divorce: A Path to Amicable Solutions When You Feel Stuck in the Litigation Machine
I am part of a Collaborative Law study group. In this group, we discuss a number of practice related topics. One topic that comes up is how to help family law clients when they are stuck in the litigation machine.
The fact pattern for this topic usually consists of the following: each spouse has lawyered up with the most aggressive firms, legal “guns” are pointed at each side in the form of court dates, discovery deadlines and deposition dates and six or seven figures into the case it will take six or seven figures to get out of it through either settlement or trial. Even after trial, the parties will not be happy or satisfied so they may continue in the litigation machine with appeals or modification hearings and, guess what, still not be happy or satisfied.
The litigation machine effect is not the lawyers’ fault, by the way. They are weapons hired to do what weapons are supposed to do and they are very good at it. It’s not the experts’ fault for the same reasons. Really, it’s no one’s fault: it’s just the end result of the divorce litigation machine. So how can divorcing couples get out of this divorce litigation machine? The solution is surprisingly simple: family law mediation. If the parties are really serious, they can kick it up a notch and engage in mediation with disqualification clauses. I am currently a consulting attorney in a couple of mediations where I have signed a disqualification clause.
There are a lot of misconceptions about family law mediation. Here are a few I heard in the last week from family law attorneys: “If the parties could work out their issues in mediation, they would work out their issues in their marriages and not get divorced.” Or, “Mediation? Is that where the parties meet with a private judge.” To the first comment, I quote Adam B. Cordover in his article “Freezing High Conflict Divorce Litigation for the Collaborative Process” where he states “90% or so of all divorce cases settle, yet millions and millions of dollars are spent each year preparing for a trial that rarely happens.” So, the parties do work out their issues. To the second comment, yes, use of a private judge for mediation is common and helpful; but, private judges cost about $10,000 a day. While they are worth every penny, not everyone has that up front or wants to spend that up front. Some people like to spend a couple hundred dollars a week on mediation and go at their own pace.
How to initiate the mediation process? Adam Cordover states in his article “If you are in a highly contentious divorce court battle, and are absolutely sick of the way it has been proceeding, but you do not want to lose all of the work that your litigation lawyer has done, consider a litigation freeze.” A litigation freeze is as follows:
“It can be a temporary, time limited phase where all litigation stops, and the divorce lawyers go on standby. Both spouses retain collaborative lawyers who specialize in using interest-based negotiations to reach a settlement. All of the collaborative lawyer’s energy and resources will be focused solely on settlement.”
Adam is advocating for the collaborative approach in his quote, but for purposes of this article I am advocating for the family law mediator. How does this work exactly? Let me give you a real life example from one of my cases. I represented dad, wife was represented by her own attorney. We had civil and family law court dates pending and discovery deadlines to meet and depositions set. Our clients had resources, but were also aware of the fact that just because they had a court date did not mean their matter would be resolved on this one date. What people do not know about the public court system is that your matter is one of 10-30 on calendar for that day and that does not include emergency hearings that come in that morning. The court may “clear” the afternoon for you and then based on the emergency hearings and matters trailing for the morning only have 30 minutes for your hearing. Then, 30 minutes in two weeks. Then, another 30 minutes in a month. Then, maybe 2 hours a few months down the road. This is the reality. In my case, our clients and both attorneys agreed that it would be best to work with a family law mediator. Between 15-20 mediation sessions later, and less than one month of time, all issues were resolved and both the family law hearings and the civil hearings as well as the discovery deadlines and deposition dates went off calendar. If the case was litigated, there likely would have been 15-20 court days over a period of six months or longer.
In addition to hiring a family law mediator, disqualification clauses are helpful too. I am happy to sign disqualification clauses as a consulting attorney in a divorce mediation case. What this means is, if either spouse decides to leave the mediation and litigate the case they cannot use the attorney who assisted them in the mediation. In the fact pattern of being stuck in the litigation machine, the attorneys currently representing each spouse can sign a disqualification clause meaning that when the mediation starts these attorneys cannot leave the mediation process and litigate the case. Everyone must be committed to resolving issues. To end with a quote from Adam: “You do not need to be stuck in your divorce battle. You have options. You and your spouse simply need to be willing to disrupt the litigation dynamics and attempt the [mediation process].”