By Lee A. Schwartz, Attorney at Law
Published: July 17, 2004
Unfortunately, when disputes arise in the Family Law area, most clients, as well as most attorneys, think “litigation” immediately. While litigation has its place, parties should consider other options as well.
Mediation is an underused but valuable alternative to litigation. In the mediation system, the two parties first must choose the individual or individuals to mediate the dispute. Sometimes, a dispute can be mediated by an attorney alone or by a psychologist alone. There are certain Family Law Mediators who prefer to mediate the dispute jointly. In the “joint mediation” system, the psychologist and attorney either jointly or separately with the clients, depending upon the issues to be discussed at that time or the work involved at that moment. Mediation is very valuable in that it is generally less costly than litigation and less time consuming.
However, I will caution you that it takes “two to tango.” As such, if one party (or both parties, for that matter) is inflexible, unusually angry about the issue (the divorce, custody, etc) or just out to punish the other side, then the parties may not be candidates for mediation.
Mediation is also valuable in that if the parties are successful in mediating their dispute, they feel, at the end, like they “own” the resolution of the dispute and are generally more likely to comply with the agreement and feel good about it. If there are children involved, this message is likely to be conveyed to the children and they may have an easier time dealing with the situation. This is so since children generally have faith in their parents and if their parents feel good about a situation, kids will more likely feel good about it. Litigation, on the other hand, creates ill will since kids see their parents fighting and oftentimes are pressured by their parents to take sides. Kids don’t want to take sides…they just want to be loved by both parents.
There are times when litigation is warranted and cannot be avoided. However, if matters can be negotiated and resolved short of litigation, the whole family wins.