By Matthew Moore, CFLS

Practically every family law matter ends the same way: with a judge signing a judgment or final order. But there are many ways to get to that final signature.

Our family law system is very good, but it has one major flaw. It is adversarial. When a party to divorce hires an attorney to manage their matter for them, that lawyer is focused on achieving the best result for their client, and if there are children, imposing their client’s preferred child custody arrangements. They operate under the assumption that what is best for their client is best for the family. Typically, the other party feels that they will get steamrolled unless they have their own attorney, so they hire a lawyer, too. The lawyers take over the case, assume the worst about the other party, and when one party refuses to accede to the other party’s lawyer’s demands, litigation ensues.

Simply put, litigation is when the judge is asked to resolve a dispute.

The most common brush with litigation that family law litigants endure is the Request for Order, or RFO. Here’s what that looks like:

The parties disagree about some immediate financial need, like child support or spousal support, or attorneys’ fees. Their lawyers make demands, and when the demands aren’t met, one party files an RFO asking the judge to resolve the question.

This is not the final trial – this is a pendente lite request, meaning it needs to be resolved in the middle of the proceedings, and not at the end, which is trial. (And, when the RFO it’s done, the parties are still in the middle of a divorce.)

The lawyers spend hours in written requests and responses, and there is a hearing. The judge makes her decision.

But at that point, months later, and thousands of dollars poorer, the parties often realize they have just spent too much money ask the judge to resolve a question that they would have worked harder to resolve themselves if they’d known how expensive it would be. RFOs in California routinely cost clients $5,000 to $10,000 or more each. And often, especially when litigating a request for money for attorneys’ fees, the amount ordered by the judge is barely enough to cover the cost of making the request.

Typically, after one RFO, the parties realize they do not want to (or cannot) spend the money to bring all their remaining issues before the judge at trial, and they become highly receptive to settlement. This is how most litigated family law cases are resolved: High attorneys’ fees, one or two RFOs, and a settlement before trial because the money for attorneys’ fees has run out.   

But it does not have to be this way. By simply cooperating to avoid the financial emergency in the first place and pausing before letting lawyers run the matter into litigation, the RFO litigation money trap can be avoided.

Just because the rules and the legal system seem to promote an adversarial posture, the parties do not need to battle each other in divorce. With both parties’ commitment, there are far superior ways to resolve family law disputes that are less adversarial and less destructive. In fact, the parties acting in agreement have more power over their matter than the judge does.

In mediation with Moore Family Law & Mediation, the parties receive expert neutral guidance to work together to resolve their matter without turning their matter over to a judge for resolution. We prioritize financial emergencies early in the matter to make sure the financial status quo of the marriage is not upset, and neither party is forced to ask the judge for help. In doing so, we short circuit the litigation paradigm described above. Rather than spend $20,000 to realize they need to resolve their own disputes, parties to mediation skip straight to resolution – at a fraction of the cost.

 

The Difference Between Family Law Mediation and Litigation: Control.

In a word, the difference between mediation and litigation is control. In mediation, the parties control the process and the outcome of their matter, and they control the cost. In litigation, the parties hand control over to their judge and to their lawyers.

 

Mediation offers a flexible timeline. It is faster that litigation when that’s what the parties want, and it is more methodical and holistic than litigation, when that’s what the parties need.

 

In litigation, the parties are subjected to strict timelines and deadlines. Litigation is like a train powered by your money, barreling forward toward trial. Mediation, on the other hand, offers a flexible timeline. It is faster that litigation when that’s what the parties want, and it is more methodical and holistic than litigation, when that’s what the parties need. In mediation, the parties control the pace and the process.

And, no matter how much money is spent on attorneys, or how optimistic you are that you will prevail, it is always a gamble to go to trial. Witnesses change their minds, experts disagree, and judges and lawyers are imperfect – even when you are right. In litigation, the parties hand control of their stuff and their lives to these third parties and hope for the best result. In mediation, the parties decide the best result based on their best interest.  

Another key difference between mediation and litigation is the role that professionals play. In litigation, each party has their own attorney who advocates for them only. In mediation with Moore Family Law & Mediation, the parties both work with the same expert family law attorney who does not represent either of them, but who is committed to educating them about their respective rights and helping them come to a full, fair, and legally sound resolution. Generally, mediation clients are also advised to seek independent counsel from a consulting attorney before they make any binding agreements, but the parties, not their consulting attorneys, remain in control of the matter.

And with control of the process and the outcome comes control of the cost. Unfortunately, the only limit on the cost of attorneys’ fees in divorce litigation is the amount of money (or credit) available to the parties. Fees in litigated divorces with children often exceed $25,000. Mediation offers resolution at a fraction of that cost, even with each party hiring a consulting attorney to review final agreements.

What is Family Law Mediation?

As we use it, family law mediation is a catch-all term covering a host of non-adversarial approaches to divorce resolution using an expert family law attorney as a neutral. It can take the form of traditional mediation, with the parties and their neutral sitting in a room together hashing out their differences, or it can look more like a one lawyer divorce where both parties are working with the same expert family law attorney to understand their legal rights and come to a negotiated solution. The parties can work with the neutral at the same time, or in separate sessions.

Every case is different, and mediation offers the most flexibility. Sometimes the parties begin the process with a sound understanding of their estate and a plan for resolution, and sometimes they start with very little understanding and only uncertainty about resolution. Every family is different, and so is every mediation. We tailor our approach to suit the needs of each family. And there are no limits on the creative approaches mediators may take to help parties resolve their matter.

Is Family Law Mediation for You?

We think so. Every family law matter can benefit from an expert neutral. If you would like to learn more, schedule a free online consultation now.

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