Mediation vs. Litigation: The benefits of non-confrontational resolution in Family Law matters
By: Elizabeth Wolt, Esquire
Many people go into a divorce with emotions high and vengeance on their mind. You want to get even, you want to punish your spouse for making you feel bad, depressed, humiliated, or worse. While realizing these emotions are completely normal, one has to rationally decide if they help you reach the goal of a stable, happy life. I cannot think of one instance where they do. When divorce is not your idea, you may even go into a classic defensive “stall mode” to try and drive the other person a little crazy with angst. Again, stop and decide what your perfect future looks like and determine if your actions and thoughts move you towards that goal or not.
Going about settling your divorce case is, for most people, the biggest negotiation of their life. The stakes are huge: Your children, your money, your sanity.
Most people feel the need for professional assistance to make sure they are getting their fair share and that their children’s best interests are being protected.
In rare cases, divorcing couples are able to rationally discuss division of all the marital assets and liabilities and come to a resolution on their own. This is very rare. While divorce lawyers are the go-to professional with the courthouse at the end of the process, I would like to propose a better alternative. A professionally trained Family Mediator who will work with all parties and their attorneys, or with unrepresented parties to resolve a mutually agreeable solution.
Mediation is about finding ways to fairly, efficiently and inexpensively create a solid foundation upon which both spouses can launch their new independent lives and best function as co-parents to their children, if minor children are involved. The mediator’s role is to facilitate both parties in making an informed and fair division of assets and resolution of their issues. The parties make all the decisions whereas if you go to court, A Judge who does not know you, listens to the evidence and enforces the resolution upon both parties-usually leaving one or both parties feeling unhappy and unheard. The mediation process, in contrast, leaves you- the parties -to fashion your own resolution that works best for you and your family. The Family mediator works to make sure that both spouses have all of the information that they need to settle their case and acts as a guide and assistant throughout the negotiation process. Mediation focuses on creating mutually agreeable solutions to divorce-related problems.
Litigation, on the other hand, is about winning and often seeks retribution for past behaviors and transgressions. In divorce litigation, the fight is on. In their role as advocate, divorce attorneys have an ethical obligation to zealously represent their clients. If you choose litigation, make sure your divorce attorney listens to you, understands what your goals are, has a strategy that you approve of, and that you thoroughly understand what your case will ultimately cost.
So why don’t more divorcing couples mediate their settlement? Because someone –or perhaps both parties– is angry and wants to get even.
The problem is that Florida is a no-fault divorce state. This means the Judge will not want to hear about infidelity or what hell your spouse has put you through. It is usually legally irrelevant. You will leave the courthouse without finding the retribution you are seeking and will usually leave with much less money than when you started the process. Litigation is expensive-both monetarily and emotionally. The answer is usually not found in the courthouse.
The best way to get even with a spouse you feel has wronged you is to be happy in your future without them. Let them see that they have no control over you and that you are better off without them.
After 22 years of practicing law, mostly solely dedicated to Family Law, I can tell you that focusing on the punishment of your spouse for negative and hurtful past acts and behaviors is risky in terms of (1) actually getting the satisfaction that you want; and (2) draining your wallet. Most judges are not very interested in dirty marital stories or idiotic behavior. They have limited time and a high mandate to make sure that they make decisions that are in the best interest of children. Adult feelings of humiliation and sadness are low on most judges’ agendas when it comes to both property distribution and spousal support. This is simply because the law of no-fault divorce makes most of it legally irrelevant.
Many people litigate because they want to tell their story- They want to be heard.
This can be done in mediation and is often times effective in making real change in how parties deal with one another. If you mediate your divorce settlement, you will not only be talking to your spouse, but there will also be a mediator there to help you find the best words so that your message will actually be heard. You cannot change someone’s way of thinking, necessarily, but it often does feel very good to be sure that you have been heard. On the other hand, if you choose the courthouse because you are looking for a judge to slap down your spouse for behaving badly, you may end up very disappointed when a judge just doesn’t want to get involved in the details of your hurt.
Elizabeth Wolt, Esquire Is an AV Preeminent rated Attorney by Martindale-Hubbell, a peer review rating process since 1887. l She is certified pending with the Supreme Court of Florida as a Family Mediator. She is a member of the Harvard Negation Project; and she has been specifically trained to mediate Family law cases. She blogs regularly on Family law matters at www.woltlaw.com and is a frequent speaker.
She earned a law degree from University of Miami, Cum Laude (1997) and holds an undergraduate degree in Psychology from the University of South Florida earned Magna Cum Laude (1994). She has been a member of the Florida Bar since 1997, The Lee County Bar Assoc. since 1997 and the Collier County Bar Association since 2014. Actual Client reviews are posted at AVVOLegal.com, Martindale-Hubbell.com, and are posted at www.woltlaw.com.