Avoiding A Divorce Trial With Mediation

This may seem counterintuitive, but it is possible to get a divorce and avoid trial in the process. Some spouses are able to work together, despite their differences, and settle the issues in their divorce or separation. Avoiding trial does several things: it reduces stress by limiting trips to court, it keeps the decision-making in the hands of the parties and away from the judge, and it saves in legal fees. Trials take substantial preparation and time is money when it comes to paying attorney fees.

When the decision to split up is made, the logical next step is to hire a family law attorney to represent you. The very idea of hiring a lawyer, which is a very practical move, makes some people recoil in fear. Most of us have heard stories about how everything went wrong when the attorneys got involved. You are probably familiar with a recent celebrity divorce in which the spouses got caught up in seemingly endless ugly contests over the marital asset division, costing the parties a small fortune in legal fees. For what end? Who wants an attorney who focuses only on trial combat procedures and the generation of excessive legal fees?

Realistically, though, most lawyers aren’t interested in creating more problems for the parties. The couple had the problems to begin with, which is why a divorce or separation is imminent. Having said that, however, you still need to be prudent in selecting and working with a divorce attorney. Make certain that the lawyer is sincere and is really looking out for your best interests. You don’t want your dollars wasted on legal fees that could have been avoided by using alternative methods of dispute resolution, methods used to avoid a trial whenever possible. The more money you can keep in your pocket, the more money you will have for your family.

Dispelling Myths

First myth. Every divorce requires a trial.

Well, that simply isn’t true. Of course, a judge must issue a final decree, but that doesn’t mean there has to be a full blown trial. Many couples are quite capable of resolving their differences and settling matters of child custody and visitation, spousal maintenance, and asset and debt division. Just knowing that you and your spouse can come to an agreement on many, if not all, the issues should give you some reassurance. Settlement is not an insurmountable task by any stretch of the imagination. Couples settle their differences every day. But to be successful, you will need to give it your level best effort.

Second myth. You must have an attorney represent you in a divorce.

Well, that isn’t true either. Although it may be prudent to have an attorney involved early on in your case, it is not a legal requirement. Parties who represent themselves in court do so “pro se” or “in propria persona.” Assuming there isn’t a domestic violence issue, there isn’t anything to prevent you and your spouse from sitting down on neutral turf and working out the settlement terms between you. If you and your spouse cannot settle a disputed issue, then the court will decide the matter for you.

Don’t Be Pushed into Trial Without Exhausting ADR First

You do not want to be pushed into litigation and a trial when alternate dispute resolution (ADR) would be a more efficient, less expensive, less stressful first option. If your attorney is only interested in arguing the case at trial, or resists the resolution of your disputed issues in a way that would eliminate the necessity of a trial, then you might reconsider whether you have hired the right attorney for your case. An experienced and knowledgeable family law attorney will explain available ADR options in a sincere effort to help you avoid the stress and cost of litigation. Mediation, a well-respected form of ADR, is an example of an excellent method of resolving disputes without the necessity of a trial.

Hiring a lawyer will not eliminate the emotional and financial pressures that a divorce brings. One thing is certain though; your attorney should not pressure or push your case toward trial when there are still other options clearly available to you, such as ADR or a collaborative divorce. Sometimes a trial is necessary, after you’ve exhausted other avenues to resolve the issues.