Try mediation first...it's cheaper

There seems to be this idea of “protection” that people buy into when it comes to hiring an attorney. People want someone to “stand up for their rights” and “defend them.” I wonder if this idea came from common law times when attorneys were the catalyst between the law and people. It seems to me that unless people have a very convoluted situation (as most believe they do), the law is the law is the law. In family law, there are only so many ways you can tweak a fact pattern to fit under different laws and change the outcome. It is only in cases of severe commingling of large amounts of money that the representation of an attorney is arguably ideal to solve the problem.

In normal cases however, attorneys aren’t necessary. Try this fact pattern: Two kids, one house, one or two retirements (Roth IRA , 401K), some money in a bank account (commingled or not) and maybe an investment. There are laws for each of these issues. Mediators, attorneys and the court have to apply the same laws according to California even if they alternate between different laws governing the same issue. The court has little discretion to deviate from the primary law for fear of having his/her decision set aside (overturned).

The question that remains then is: “how much time and money do I want to invest in the resolution of my case understanding that the legal outcome will vary minimally with either a mediator or attorney?”

Mediation is a financially sound choice to start with. You can always go from mediation to litigation but it is much more difficult to go from litigation to mediation. The reason the latter is more difficult is because often the parties do not start off with as much anger and they end with. By the time people realize the case is going nowhere with the bickering attorneys, a person has already spent unconscionable amounts of money, incurred attorney fee debt, and is too angry to mediate- or so they think.

If you start with mediation and try to resolve the issues amicably (or at least without constant anger and hatred) you will not spend as much money, you will probably learn that you do agree on some things with your spouse and the process is much shorter from start to finish. You don’t have to be in the same room with each other, although if you have children you will have to learn how to communicate eventually … the mediator can communicate between the parties and the parties won’t lose their wallets in the process.

98% of all cases that are litigated end in settlement…but only after a lot of money, emotions and heart has been spent. Why not start with settlement and work backwards if necessary?