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Why You Should Mediate, Rather than Litigate, Your Divorce

The last time I went to court, both parties were left unhappy. The mother, whom I was representing, received less in child support than she thought she deserved. The father, represented by another attorney, got neither the holiday visitation nor the summer visitation that he had requested or hoped for.

If these parties had instead mediated their child support and visitation issues, the mother could have received the child support she was seeking to give the father a little more of the visitation he was seeking. Such options are possible when a couple agrees to mediate their divorce or custody issues, rather than taking the litigation route.

To schedule a consultation with our team, contact us online or via phone at (505) 544-5126.

What Is Mediation?

Oxford Learner's Dictionary defines mediation as an attempt to end a problem between two parties who disagree by talking to them and finding things that everyone can agree upon. That is a simple but rather accurate definition. Mediation is a mechanism for finding solutions that all parties can agree upon. The result is two somewhat satisfied parties rather than two very unhappy ones. Not don't get me wrong, I love litigation, I am good at it, and up against most attorneys, I can get my client more of what he or she is seeking than the other side will get.

But it's not always the best way. As an attorney, I have been practicing for more than 25 years. I generally know how the judges will rule. I know the law. Because of this, I bring a wealth of experience and knowledge to the table to assist in whatever the dispute may be. Rarely do my mediation cases fail to settle. Additionally, mediation is substantially less painful than litigation. Litigation hurts.

Why Choose Mediation Over Litigation?

In a litigated visitation case, I am forced to bring up the other's party's drinking issues, excessive marijuana habit, or neglectful parenting. My client will be criticized for each and every wrong he's ever made, leaving both parties wounded and hateful in the end. Conversely, in a custody dispute mediation, rather than focus on the mother's drug problem, I instead focus on what goals can be put in place for that same mother to have visitation re-instated (her ultimate goal) while also putting into place safety mechanisms to ensure the children's safety I (his ultimate goal). Additionally, mediation tends to leave the parties more satisfied.

In every divorce case, there are competing interests. In one case, the father wants more time with the children, while the mother wants more support. As a mediator, I can offer creative solutions. Maybe the father can pay less but agree to buy all the children's clothes. Or perhaps we can arrange to add a few more days to the father's visitation schedule every month. Again, creative solutions result in satisfied parties. A judge will never take the time to work out these sorts of details.

Mediation is substantially less expensive than litigation. Litigation is costly. For every one hour of litigation, I put in three hours of preparation. For your one day trial, I will prepare for three full days at a total cost to you of $10,000, including the trial day. And that is before the attorneys fight over the language of the judge's ruling, the drafting of the final order, and the exact interpretation of the judge's words.

With mediation, you and your spouse or significant other hires one attorney, the mediator, to find creative solutions that both parties find tenable. Usually, the parties can reach an agreement in one or two meetings. Rarely do my mediation costs exceed $3,000- $4,000 with the costs shared by both parties. Litigation cases rarely cost less than $5,000 for each party! Mediation provides substantial savings.

Finally, mediation provides predictability. Litigation is uncertain. While sometimes I can predict with reasonably good accuracy what visitation the judge will award my client in a divorce or how much child support my client will have to pay, specific issues like spousal support are more challenging to predict. In New Mexico, spousal support is based on two factors, one party's ability to pay and the other party's need.

That leaves a lot of wiggle room on how much the judge will award spousal support to my client. However, if I am mediating a spousal support case, we can prepare and review both parties' budgets. We will exchange tax returns. We can consider possible tax breaks. We can calculate support off the alimony guidelines. The court won't necessarily do any of this. The alimony guidelines are for mediation purposes only.

Mediation is a much more predictable means of obtaining precisely what you want.

What Makes a Good Mediator?

A good mediator helps level the playing field. The two parties in a divorce proceeding are rarely equal. One has more resources or more education or more money. Another party may have more to lose or may have no idea what assets the marriage has.

A good mediator will have both parties bring a list of assets with supporting documents. This ensures both parties know the assets and liabilities and allows both parties to participate in a fair proceeding meaningfully. A good mediator will ensure that neither party is taken advantage of.

While a mediator will not advocate for either party, a good mediator will help educate both parties about what is fair or what the judge is likely to do in their particular proceeding. The parties are not pitted against each other but can work with the mediator to resolve each pending issue. Finally, a good mediator will listen to both sides while not becoming entangled in the underlying drama. And a good mediator will find creative means to resolve the disputes.

Identifying the factual dispute is another asset of a good mediator. Sometimes I meet separately with each party to help the more timid party voice his or her concerns. Identifying the true nature of the dispute is crucial to finding a creative and favorable solution.

At Cortez & Hoskovec, we know how unpredictable litigation can be. In your mediation, we will meet with both you and your spouse, help you to identify the issues, and find creative ways to resolve those disputes without destroying the remaining ties you may have together. This is especially important when you have children together—all for one reasonable fee.

To schedule a consultation with our team, contact us online or via phone at (505) 544-5126.

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