Choosing a Path: Process Choice in Family Law Cases

When should you try to negotiate, or mediate… or litigate? Here’s what the various approaches to divorce can look like.

DISCUSSION

• PROCESS:  Direct, but unassisted talks
• COST: Free — or whatever ordering two Starbucks creations costs this month
• TIME: Undetermined
• BENEFITS: Direct, free discussions between the two people who should be making the decisions
• DRAWBACKS: No referee is present during discussions, or professional input as to agenda or options

MEDIATION

• PROCESS:  Direct, but assisted talks
• COST: $100-600 per hour; depending on whether attorneys participate TOTAL COST: $1,000 to $5,000
• TIME: From 10 hours to 12 weeks
• BENEFITS: Guided discussions, with input regarding solutions other couples have used; the neutral host can temper the tone of the talks, if needed
• DRAWBACKS: No power to subpoena documents, cross-examine or force responses to questions; people must be able to speak out for themselves

ATTORNEY NEGOTIATION

• PROCESS:  Attorney dialogue, with exchanges of information, but no formal discovery
• COST: $175-275 per hour for each attorney; TOTAL COST, perhaps $5,000 to $10,000 EACH
• TIME: From 3 to 9 months
• BENEFITS: Professional guidance and representation are used throughout the negotiations
• DRAWBACKS: Process is indirect, and frequently invisible to the parties; personalities of the attorneys may become a factor. Costs are harder to control

LITIGATED SETTLEMENT

• PROCESS:  Formal discovery, with settlement before trial
• COST: $175-275 per hour for each attorney; TOTAL COST, perhaps $15,000 to $30,000 EACH
• TIME: From 6 to 12 months
• BENEFITS: Useful if facts need to be established, or financial information ferreted out
• DRAWBACKS: Can be an expensive exercise in preparing for a trial that never occurs; the contest between attorneys frequently takes on a life of its own. Proceeding formally can be slow and costly

ADJUDICATION

• PROCESS:  Formal discovery proceedings, followed by trial
• COST: $175-275 per hour for each attorney; TOTAL COST, perhaps $25,000
  to $50,000 EACH …or more
• TIME: From 6 to 24 months
• BENEFITS: The laws of the State are applied to the family. If the spouses can’t agree, a Judge will impose a solution and provide closure
• DRAWBACKS: The laws of the State are applied to the family, with no guarantee that your Judge’s interpretations of those laws will result in an acceptable outcome on any issue