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Category: Family Law

Why You Should Consider Mediation Instead of Litigation

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Written by Olivia St. Clair Long, JD on 1.29.20

One of the most widespread sources of frustration for the average person navigating the court system stems from common beliefs about justice. For many people, justice means the “right” party will prevail, and the “wrong” party will lose. If you approach the court with this idea, you are likely going to be disappointed. Access to the court system isn’t designed to give you a perfect answer crafted by an expert judge; rather court is a tool designed to help you solve problems, not to take in facts and decide the “right” outcome for you.

In other words, you are probably going to have to do some work.

Mediation is one alternative to court. In mediation, the two parties in a dispute come together to sit down and do that work to try to reach solutions with a mediator. This person’s job is to act as a strictly neutral party helping the parties come to an agreement both can live with. So, if your idea of justice is “sitting down at a table with someone I’m really mad at and compromising,” then you are in luck because that is what mediation is for. If not, now is as good a time as any to start reframing things in your mind.

What if, you ask, the other person is super wrong, and you are super right? Well, there is always litigation. However, going to trial is actually extremely time-consuming and mind-bogglingly expensive, and it is still not guaranteed to produce the results that you think are just. In fact, only 2% of cases make it to trial. This means that you’ll end up having to agree and compromise anyway. Litigation also involves discovery, or the exchange of documents and other evidence about the issue, much of which becomes public record; often something the parties would very much like to avoid.

Ironically, you may even feel that you can tell your side of the story more in mediation than you would in a trial; when you are in court there will more than likely be bits of information that feel very important to the overall case to you, but are, for various reasons, not legally relevant in your case. Because mediation is not a trial, but more like a moderated discussion, you may get to tell your story in a way that is more respectful of your experience than what you would have been able to present in court.

You may still want to hire an attorney even if you enter into mediation with an opposing party. In fact, it’s highly recommended that you do, as a mediator role is to approach a situation from the perspective of bringing two disputing parties together to have a productive discussion whereas an attorney is expressly there to advocate for a party’s best interests. An attorney can advise on you the best use of your time in mediation, give you tips on areas where you likely can or cannot see the other party compromising, and help you feel confident that you are going through a process that is fair to you and reaches a good result. When you’re done, you know that you advocated finding the most advantageous solution possible, while also saving a tremendous amount of money in litigation costs.

By approaching your legal situation with this framework in mind, hopefully, you will be able to minimize your expenditure of both money and time, reach a livable solution faster, and get to what matters most in your daily life.

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