Understand the risks and rewards of mediation and collaborative divorce options; protect against dead ends.

Divorce and custody litigation can be extraordinarily unpleasant. For some, family law cases are expensive, time consuming, inefficient and unpredictable. Alternatives like mediation and “collaborative practice” keep cases out of the courtroom, unless one of the parties walks after a change of heart. Take time to understand the risks and rewards of alternative dispute resolution before opting against traditional litigation.


Litigation ≠ Predictability

In dealing with divorce and child custody cases, our Family courts have a great deal of discretion when it comes to interpreting California laws. Sometimes that discretion is expressed in ways no lawyer could possibly have predicted. Peace of mind for the litigants is hard to come by in this kind of environment. Hoping for more predictability, couples are turning to alternative forms of resolving their family law disputes.


ADR Benefits

With mediation, two parties meet with a neutral attorney to assist in bringing about a compromise resolution without the need for litigating in court.

Using collaborative practice, the parties are each represented by independent counsel, and may also hire additional financial and custody experts to work toward resolution together.

To the extent the parties involved in the divorce or custody case are capable of working together toward a common goal, both mediation and collaborative practice can be excellent options. Mediation in particular can be a great choice to keep costs down and stay out of the courtroom. Collaborative practice is more complex. It involves any number of additional professionals, and so is probably better suited to more complex cases, like those involving complicated family business issues and difficult custody questions. For clients looking to stay out of the eye line of a judge who does not always have all of the relevant information in a case—and who certainly does not know the parties as well as the attorneys and other professionals do—both mediation and collaborative practice can yield great results.


ADR Risks

While enticing, these methods of alternative dispute resolution are not perfect. For one thing, in mediation, one of the parties can simply walk away at any time. Unless the mediator has obtained specific orders from the court (like temporary support or custody orders), this would mean that the parties are back to square one at the drop of a hat. This can happen when one of the two parties does not like where things are going in mediation, and decides to pull the plug before an agreement gets signed. If that happens, the only option likely left is litigation, only at that point weeks or more realistically months may have been wasted (along with the money spent on the mediator) with no real progress being made in the case. Worse yet, if the mediator came through the recommendation of one of the parties, that party cannot then use the mediator to represent him or her in the courtroom litigation. The mediator will have an incurable conflict of interest at that point. And with collaborative practice, because so many different professionals must sometimes be involved in the case, the costs may not be substantially different from litigation, and could even exceed them.  If one party decides to opt out of the collaborative model, it’s back to the drawing board again, as with a failed mediation.


Protection for ADR Dead Ends

Something that we frequently recommend to our potential clients who are contemplating mediation or collaborative practice is to retain an attorney they like in order to consult with them separate and apart from the attorney mediator or collaborative professionals with whom they may work. If the client meets with a referred attorney and inquires about that attorney working as a mediator in the case, we also might suggest retaining that attorney on a consulting basis and then selecting a different mediator so that the client does not lose out on the referred attorney if the mediation process breaks down. The same advice applies to the collaborative model. This will protect against the mediation or collaborative model suddenly going south and leaving the client without a legal representative. And consulting off and on with another legal mind can also help the client evaluate the direction the mediation is going, and can make decision-making somewhat easier.


Regardless of the chosen path, any good divorce professional will have the same goal in every case – bring closure for the client in the most efficient and cost effective way. And while the hope for every potential client to achieve a speedy and equitable resolution to their family law case, this hope is tempered by the reality that sometimes resolution can require the involvement of the court. The lesson is simple – hope for the best, and plan for the worst.


FORESTER PURCELL STOWELL PC is a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. Attorneys can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.

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