Divorce Mediation & Litigation

You’ve taken the first step, you filed for divorce. Now as your case has been progressing, you and your spouse have exchanged settlement offers. You’ve tried to work things out. But an unstoppable force has met an immovable object. You and your spouse may have been unable to resolve anything in your case. You may have worked everything out except for one issue. Regardless, the court or your attorney are telling you that you now need to go to mediation to see if you can resolve the issues in your case. But, what is mediation?

Alternative Dispute Resolution (“ADR”)

Depending on the jurisdiction, you will you likely be required to engage in ADR to resolve your dispute before a temporary orders hearing. Parties may voluntarily engage in ADR as well. The most common form of ADR in Family Law cases is mediation.

Mediators are neutral third parties, who are usually attorneys or retired judges. The mediator facilitates discussions between the parties to try to resolve issues in a case.

How does Mediation Work?

Typically, mediation takes one to two days, depending on the number of issues and how contentious things are between the parties.

Mediation is a confidential process, which means that the parties are free to make offers to settle because making that offer cannot be used against a party if the case goes to trial. Generally, the parties are in two separate rooms and the mediator goes between the rooms talking to each party and conveying settlement offers.

Mediators help provide a third party perspective in disputes. That perspective can be very valuable. For example, a retired judge can provide a judicial perspective, which lets the parties know how a judge may rule. Mediators can help parties with unreasonable positions realize that they need to adjust their position.

Even if your case is not completely settled at mediation, you may be able to settle some issues. For example

Mediators are not decision-makers and cannot force the parties to take any action.

Ryan, Amy, Georgina or Michael will attend any mediation with you unless we both agree that you’re fine on your own. We will strategically advise you throughout the process, including which mediators are best for your case and analysis of the settlement terms.

Temporary Orders

There may be issues – parenting time, child support or maintenance, for example – that require prompt attention during the pendency of your case. The judge has the authority to make temporary orders on particular issues until either (a) the parties reach a final agreement or (b) the case is fully presented to the court at trial. Upon a filed motion, the judge will set a short hearing to consider the arguments of each party. With the general exception of the rare circumstance when the safety of children is allegedly jeopardized, you can expect the hearing on temporary orders to be set 2-3 months out.

Expert Witnesses

It may be necessary to retain an expert to assist with your case. An accountant, real estate appraiser or a doctor may be helpful in resolving disputes over property valuation or parenting time. Due to the increased cost involved with bringing in an expert, we will recommend hiring someone only if we deem it in your best interest. If parenting time or decision-making authority is disputed, the court may appoint a Child and Family Investigator (“CFI”) to make recommendations based on inquiry into the circumstances of the dispute. A CFI is a neutral party who typically observes each party during their parenting time and, if appropriate, interviews the child or children. The CFI may also consult with friends and family in making recommendations for the best interests of the child or children. The cost of a CFI is capped at $2,750 unless there are extraordinary circumstances. Courts routinely require parties to split the cost of a CFI $1,375 each. The CFI will issue a written report with recommendations on allocation of parental responsibilities. The whole process takes approximately 3 months. Another option for a parenting dispute is a Parental Responsibilities Evaluator (“PRE”). They are similar to a CFI, but typically are professionals that are better educated and trained to investigate high-conflict or complex cases. They are more expensive than CFIs. Costs range from $7,500 to $20,000.

Trial and Timing of Trial

If you do not settle all issues in your case, it will be set for a trial. In Family Law, a trial is called a Final Orders or Permanent Orders hearing. The trial will be in front of the assigned judge for your case; there are no jury trials in Family Law. Final Orders can be on all or just a few disputed issues in the case. For example, if you reach an agreement on the disposition of marital property, we may still go to Final Orders on the amount of child support or some other issue. Many people are surprised at how long it usually takes to get a trial date. Depending on how many days are needed for Final Orders, you should expect a setting no earlier than 6 months from when we request a date. We generally advise clients to expect a divorce to take a year. A dispute on maintenance or child support will likely take less time. The timing of each case will vary depending on the issues, parties, judge, and, if pertinent, opposing attorney involved.