When I was young, my father officiated marriages. I remember his words during the ceremonies, “Let the two become one flesh.” For 30 years, I too was in the business of making the two into one, however, as a divorce attorney. As it so happened, one of the parties would come to me setting forth his or her position on why “one” in this instance would be better than two and, over the course of a year or longer, the marriage was dissolved. There were generally two attorneys during this process, his attorney and her attorney. Sometimes, there were additional attorneys. In many cases, the court appointed an attorney to represent the children’s interests. In other cases, a fourth attorney was appointed to value the assets. In those cases, the process always exceeded a year of court hearings, attorney meetings, psychologist meetings and more. Today, I am advocating for the position that using one attorney during a divorce or custody dispute, is always better than two. Or three and especially better than four.
First, attorneys make your case more acrimonious and a lot lengthier. Your attorney's job is to advocate for you. But in so doing, he or she will want to bring up every wrong decision or terrible act your former partner ever committed. In the beginning, you may relish and celebrate in this mode of litigation. However, the slinging of mud and the airing of grievances will lead your partner’s attorney to commence in a similar fashion, also slinging the mud and airing the grievances, this time against you. More and more mud slinging in the name of more and more advocacy. Before you know it, the judge is ready to call child protective services against both of you, your house is being sold and your retirement accounts are all being divided, one by one. You savings account is not being divided because it was depleted by all the attorney fees.
Because of all the attorneys and the arguments and all the acrimony, twelve months have passed and you are no closer to being divorced. But this was reality during my thirty years of practice. However, over time, I discovered it was not the only way and I started striving for more of a mediative approach. All divorce and custody cases have some level of acrimony, but all divorce and custody cases also have parties who share some common ground. A mediator can find that common ground. Rather than focus on the alcoholic, a good mediator will help find safe time-sharing solutions. Rather than file a motion to sell the house, a good mediator will ask the parties to value the house and then propose what property can be exchanged for the house. While the two or three or four attorneys focus on the problems facing the family, the mediator finds solutions and present them to the parties.
Secondly, two attorneys tend to conduct your case in accordance with the statutes in place in your state. Property must be sold or equally divided. In the case of house which cannot be equally divided, it will always be sold. There will be even less creativity when you go to court and appear in front of the judge. The judge is constrained by the limits of the law.
A mediator on the other hand, can find both parties creative solutions. A house can be exchanged for retirement accounts. Separate property can be protected or exchanged for other marital assets. Children's issues can be discussed in the safe environment of the mediator's office. No one will be called to testify. The entire process is fully confidential. The children won't be put in the middle through a custody evaluation. More property can be retained rather than divided and sold. Finding creative solutions is so vital to a divorce and custody case, yet such creativity will never, ever be accomplished through trial.
Finally, and honestly, the best reason to hire a mediator, is to save yourselves thousands of dollars. In a divorce case, each attorney will generally require a $5,000 retainer. That retainer may last you two to six months at which time it must be replenished. Attorneys are not beyond putting liens on houses in order to assure payment.
While some mediators do require a retainer, we do not. Through the entire case, you will pay as you go. And I haven’t yet had a mediation exceed $5,000. For most mediations, we meet two times, once to mediate the dispute and the second time to sign the documents. The total cost is often around $2,000. The mediation process generally takes two to three weeks, to schedule your mediation, meet with the mediator and sign the documents.