A Case Study: Litigate or Mediate?

What is the difference when a husband and wife are divorcing between (1) using two lawyers and an adversarial process and (2) using a mediator and the collaborative process of mediation? Here is a case study:

Mitch wants a divorce.  After almost eighteen years of marriage, he is in a mid-life crisis and wants a major change in his life.  He has three children, ages three, six, and eleven. End of summer is here.  His wife Leslie is a lawyer but has been staying at home with the children for the last few years.  He is a lawyer as well, a successful solo practitioner with his own firm on the East Coast.  Mitch has decided to relocate to the West Coast.  He has always been generous with his family, but now with the cost of establishing a West Coast office, finding a new place to live, and travelling to see his clients, he would like Leslie to go back to work full time. He also has a new girlfriend, someone he met on a business trip on the West Coast.  He is thinking that Leslie can hire a full time nanny to look after the kids and find a new job immediately. Since he has always insisted on paying the bills for the family, he has knowledge of the family finances. He would prefer that Leslie not have information regarding the finances.  Leslie, taken by surprise, has a choice:  she can either hire the lawyer with the best reputation in the area for being a fierce advocate for his or her clients or she can hire a mediator with the hope of having a cooperative divorce process.

Here is what the process may look like if she were to hire a zealous lawyer.  Leslie would make an appointment to meet with the lawyer alone.  She would tell him or her the facts of the case. The lawyer would communicate with Mitch 's lawyer on all aspects of the case.  The lawyers would shape the process.  Both lawyers would begin the formal process of obtaining information called discovery, which involves  requesting documents and requiring the parties to sit in face to face questioning sessions called depositions.  The lawyers would fight it out on behalf of Mitch and Leslie over all sorts of issues -- custody, visitation, child support, what to do about the house and its contents, who gets to claim the kids as dependents, how to pay for college, how to share  expenses related to the children, how to split the assets, and whether this is a case for spousal support.  A trial date would be set.  A last ditch effort to settle would be made just prior to the court date.  An attempt at arbitration would be made, with a retired judge handing down a decision on spousal support and child support. Eventually, after about 28 months and right before New Year's Eve, Mitch and Leslie will sign a separation agreement -- exhausted, stressed, and weary. They will have each spent  $100,000 of  their savings to pay the best lawyers in town. 

Here is what the process might look like if Leslie were to hire an empathetic mediator. Leslie and Mitch would each have a separate and brief phone conversation with the mediator describing the facts of the case.  A first mediation session would be scheduled, and in this first session, the mediator would sit with Leslie and Mitch around a small table and describe how the mediation process works.  Confidentiality is an important component of the process, unlike in litigation. An agreement to mediate form would be signed.  Leslie and Mitch would begin to list the topics that they would like to discuss, such as establishing custody/visitation and a parenting plan, dividing assets and liabilities, figuring out what to do about retirement, insurance, and taxes, deciding whether spousal support is appropriate, and calculating child support. 

Leslie and Mitch would pick what topic they would like to discuss at the first meeting, such as custody and visitation, and take turns listening to each other.  The mediator would facilitate communication and help empower the parties to create mutually agreeable solutions to defined problems.  The first session would last about two hours.  They may meet for up to ten 2 hour sessions over a period of a few months.  At the end of each session, the mediator would write up her notes into a draft memorandum of understanding (MOU). The notes would include the topics covered,  Leslie and Mitch's perspectives, and areas of agreement. This MOU will evolve after each session and, in its final form, represents the decisions that Leslie and Mitch reached in mediation.  At the end of 10 sessions, Leslie and Mitch will have spent a total of $4000 or $2000 each to pay for the mediation, excluding a small charge for agreement writing. They will have had control over the outcome. They will have reached important decisions  regarding how they will go forward by mutual agreement. 

Which approach sounds better to you?  

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