The High Cost of Litigation

Litigation is an expensive process. Divorces that go all the way through trial can often run $50,000 or more for each spouse. Not only that, but there are other costs as well – including a huge emotional cost for the parties, damage to parenting relationships, and fallout for the kids.

Fortunately, there are a number of ways to help keep that high cost down. Engaging in dispute resolution can often get the case settled in advance of trial and help reduce the amount of conflict as well. Two basic methods of dispute resolution are mediation and arbitration.

In mediation, a neutral mediator helps facilitate the conversation between the two sides. The mediator is not there to make decisions, through they may offer opinions. Some mediation is done in a style we call Settlement Conferences. These generally involve having the attorneys for both sides lay out their cases, and the mediator offers a neutral opinion as to what the outcome at trial is likely to be. The mediator then works with both parties on the strengths and weaknesses of their cases in order to move both towards the outcome the mediator believes is most likely.

Another form of mediation we often call Early Mediation. This focuses less on the strengths and weaknesses of the case, particularly since it is earlier in the process and the legal cases have not been fully developed. This form of mediation tends to focus more on identifying what the parties care about the most and helping them come up with their own solutions to their concerns. This can work well for couples who want to minimize costs and feel they share enough common values to be able to reach agreements on their own that are not based purely on what a court would do.

Another option is arbitration. Arbitration involves empowering a third person to make decisions for the parties on issues they cannot agree on. Essentially it means hiring a private judge. Advantages over having the issues decided by a court can include the ability to set your own time schedule (rather than having to wait a year for the court to get to your case), being able to simplify the process (for instance submitting letters and other documents to the arbitrator rather than having days of live testimony), and the ability to determine who you want to decide your case. A negative can be limitations on the ability to appeal the result.

Sometimes we like to use a combination called Med/Arb. This means that we will mediate the issue as far as we can get, then ask the mediator to switch hats and arbitrate any outstanding issues. This can save time and money because the mediator is already familiar with the issues from the mediation process, though sometimes parties will wish they had not agreed to proceed to arbitration once they have gotten a sense of the mediator’s opinion during the mediation itself.

All of these processes offer help in reducing the financial and emotional costs of resolving your case. Be sure and ask your attorney about them.

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  1. […] There are no special rules or procedures associated with a Cooperative Divorce, but it does mean that the two sides (and particularly the attorneys) try to cooperate with each other to the extent possible to help the case resolve as simply and cost-effectively as possible. […]