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  • Writer's pictureAlan Jacobs

How Much Can I Save Mediating My Divorce?

The fees to simply retain an attorney for each party in a divorce start around $5,000 for an average case. That means you will spend $10,000 minimum just to get your divorce case started.

Attorneys will then charge additional fees for time spent on the case after the funds from the retainer are exhausted.

In contrast, the total cost of mediation from beginning to end is typically less than the fees a couple will spend just to retain lawyers to handle the divorce. In fact, a recent study showed that couples who chose to dissolve their marriage in court spent an average of 134% more than those who chose mediation.

Also, typical mediations last no more than a few months, possibly up to six months for complex cases. A traditional divorce is usually resolved within three years and only after extensive time is spent on paperwork, meetings and court appearances. There are many cases that go beyond 3 years, especially when kids are involved.

Reasons to Consider Mediation

Statistically, 93-96% of all family law cases settle prior to trial. With probabilities high, it isn't a question whether a case will settle but when it will settle.

Keeping this in mind, Professor John Wade of Bond University in Queensland, Australia "modestly" proposes the following costs involved in settling later rather than earlier:

  • Attorney fees

  • Accountant fees

  • Interest lost on money received later rather than sooner

  • 1-2 years of personal stress and uncertainty

  • 1-2 years of stress on family members

  • 1-2 years of stress on others and work associates

  • 1-10 weeks of absenteeism from work

  • 1-3 years of lost concentration and focus on work

  • Life/business on hold for 1-2 years

  • Inability to "get on with life" for 1-4 years

  • Negative publicity on press/business circle

If resolution is to be by litigation, the following additional transactions costs may be added to the above:

  • 1-5 weeks of lost employee time preparing for court

  • Embarrassment and loss of goodwill when relatives/friends/business associates are subpoenaed to court

  • Expert witness fees

  • Loss of control over your life to professionals

  • Post-litigation recriminations against court, experts and lawyers

  • Loss of value by court-orders sale/appointment of receiver, etc.

  • Lost future goodwill with and "paybacks" by opponents

  • Cost and repeat of all previous factors if there is an appeal

These are not exhaustive lists. In each case, the client must assess the range of possible costs in each category considering the best-case scenario and the worst-case scenario if the category would likely apply to the client, to the opposition or both.

Family law clients need to understand that their "best case scenario" is unlikely to be the result of litigation. The "bigger the win" for one party the more likely it is the other party will appeal. Getting to that "big win" is a slow process and frequently is at great cost.

Mediation is a process of facilitated negotiation for parties who are motivated to resolve their differences as quickly as possible under the circumstances, retaining as much control over the process as possible. It does not preclude attorney participation at any stage of the process. It does not preclude discovery as is necessary for both parties to be fully informed. Mediation does not require that the parties "like" each other. Mediation at its best is a process in which parties' interests are addressed, rather than their "positions", allowing for the possibility of a win-win situation.

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