Cost-Benefit Analysis: Mediation versus Litigation 

The Gainesville Divorce Attorneys of the Law Office of The Gainesville Divorce Attorneys of the Law Office of Alba & Straile, PLLC know that when it comes to contested divorces, clients generally have two primary concerns: (1) meeting expectations regarding the terms of the dissolution; and (2) doing so in the most cost-effective manner. While for some divorcing couples, it may appear, at least in the initial phases, that trial seems inevitable—this does not necessarily mean that there is no hope for pre-trial resolution. In fact, for many spouses, they later find that they are actually able to resolve disputed matters without court intervention through the process of mediation. Here, we discuss the benefits to mediating disputed matters, in terms of the overall cost and expense of obtaining a divorce. First and foremost in evaluating the cost of mediation, it is helpful to know that: (1) either a public or private mediator can be used; and (2) either party can be represented by counsel at mediation. Although private mediation is typically more costly, for some this approach can be more effective in facilitating negotiation. Likewise, although there are of course attorney’s fees associated with having counsel represent you at mediation, it is important to consider how a legal advocate can improve your chances of successfully reaching resolution on as many issues as is possible. Given the foregoing, consider the cost of mediation as opposed to litigation, based upon a scenario in which a party will be represented by counsel at a mediation that will be overseen by a private mediator. Let’s say the mediation takes 3 hours. In calculating costs, it would be necessary to multiply the hourly rates of both mediator and attorney by three. Now, consider this cost in comparison to the expenses associated with trial… In the overwhelming majority of cases, even attorney-represented private mediation will be the most cost-effective approach in a contested divorce, particularly where the parties are able to reach full agreement on all terms. However, even partial resolution can reduce costs, by limiting the number of issues that your attorney will need to address at trial. Two additional thoughts should be taken into consideration in comparing divorce costs associated with mediation versus litigation at trial… First, it is important to evaluate whether, given prior attempts at negotiation, it is unlikely that mediation will provide a forum by which the parties can reach agreement. In some cases, family mediation may be mandatory, and therefore, a valid attempt at reaching resolution should be made, while also ensuring that mediation is as brief as possible in circumstances where the parties’ ability to negotiate seems altogether pointless and/or futile. In other cases, and regardless as to whether mediation is mandatory or non-mandatory, an attorney can aide in ensuring that the topics addressed in mediation are limited to those which are most likely to be resolved. Second, it is helpful to consider the cost-benefit analysis of mediation from the perspective of a family law attorney. Representation in divorces, and any family law proceeding for that matter, are never taken on a contingency basis, meaning that the attorney has ZERO financial stake in the outcome. In fact to do so would be against rules of professional conduct. Thusly, when your attorney recommends, suggests, or advises, that disputed matters over the terms of the divorce are capable of resolution through mediation—such analysis is offered solely for the benefit of the client. In other words, if your attorney didn’t genuinely care about their client’s interests they could simply allow the parties to relentlessly and persistently continue their disputes in a long, expensive, drawn-out process, in which the court will eventually decide for them. Consequently, it is important to keep in mind that if, upon attorney evaluation, it is determined that mediation may be a practical solution in your divorce case, such advise should generally be considered for exactly what it is – your attorney’s concern over the well-being of their client! At the same time, we preface such contentions with the view that properly assessing the best approach to take in a divorce is more appropriately left to the determination of an experience qualified divorce attorney. Not every divorce is the same, and neither is every divorce attorney. We encourage all divorcees to know their rights, understand their options, and take measures to protect them. know that when it comes to contested divorces, clients generally have two primary concerns: (1) meeting expectations regarding the terms of the dissolution; and (2) doing so in the most cost-effective manner. While for some divorcing couples, it may appear, at least in the initial phases, that trial seems inevitable—this does not necessarily mean that there is no hope for pre-trial resolution. In fact, for many spouses, they later find that they are actually able to resolve disputed matters without court intervention through the process of mediation. Here, we discuss the benefits to mediating disputed matters, in terms of the overall cost and expense of obtaining a divorce. First and foremost in evaluating the cost of mediation, it is helpful to know that: (1) either a public or private mediator can be used; and (2) either party can be represented by counsel at mediation. Although private mediation is typically more costly, for some this approach can be more effective in facilitating negotiation. Likewise, although there are of course attorney’s fees associated with having counsel represent you at mediation, it is important to consider how a legal advocate can improve your chances of successfully reaching resolution on as many issues as is possible. Given the foregoing, consider the cost of mediation as opposed to litigation, based upon a scenario in which a party will be represented by counsel at a mediation that will be overseen by a private mediator. Let’s say the mediation takes 3 hours. In calculating costs, it would be necessary to multiply the hourly rates of both mediator and attorney by three. Now, consider this cost in comparison to the expenses associated with trial… In the overwhelming majority of cases, even attorney-represented private mediation will be the most cost-effective approach in a contested divorce, particularly where the parties are able to reach full agreement on all terms. However, even partial resolution can reduce costs, by limiting the number of issues that your attorney will need to address at trial. Two additional thoughts should be taken into consideration in comparing divorce costs associated with mediation versus litigation at trial… First, it is important to evaluate whether, given prior attempts at negotiation, it is unlikely that mediation will provide a forum by which the parties can reach agreement. In some cases, family mediation may be mandatory, and therefore, a valid attempt at reaching resolution should be made, while also ensuring that mediation is as brief as possible in circumstances where the parties’ ability to negotiate seems altogether pointless and/or futile. In other cases, and regardless as to whether mediation is mandatory or non-mandatory, an attorney can aide in ensuring that the topics addressed in mediation are limited to those which are most likely to be resolved. Second, it is helpful to consider the cost-benefit analysis of mediation from the perspective of a family law attorney. Representation in divorces, and any family law proceeding for that matter, are never taken on a contingency basis, meaning that the attorney has ZERO financial stake in the outcome. In fact to do so would be against rules of professional conduct. Thusly, when your attorney recommends, suggests, or advises, that disputed matters over the terms of the divorce are capable of resolution through mediation—such analysis is offered solely for the benefit of the client. In other words, if your attorney didn’t genuinely care about their client’s interests they could simply allow the parties to relentlessly and persistently continue their disputes in a long, expensive, drawn-out process, in which the court will eventually decide for them. Consequently, it is important to keep in mind that if, upon attorney evaluation, it is determined that mediation may be a practical solution in your divorce case, such advise should generally be considered for exactly what it is – your attorney’s concern over the well-being of their client! At the same time, we preface such contentions with the view that properly assessing the best approach to take in a divorce is more appropriately left to the determination of an experience qualified divorce attorney. Not every divorce is the same, and neither is every divorce attorney. We encourage all divorcees to know their rights, understand their options, and take measures to protect them.