Is an Experienced Litigator a Good Choice as a Mediator?

The simple answer to this questions is yes. Why? The answer lies in the fact that pursuing mediation in an effort to divorce amicably, or in a more cost-effective manner, having the help of someone with experience is key. An experienced divorce and custody mediator must not only have the skills and attributes that can guide the parties toward an agreeable arrangement, but a mediator who also has litigation experience can also share the “long view” with the mediating parties and warn them of the consequences of abandoning mediation and turning to litigation to resolve their issues.

I have mediated several cases in which one or both parties threatened to walk away from the table and end the mediation. I recall that in those particular cases, the threat to abandon mediation stemmed from frustration, resentment toward the other party, or simply a reluctance to compromise in order to reach a global agreement.

In those cases, I was able to explain and prepare each party as to what would happen next if they pursued litigation, including the amount of unnecessary legal fees they would incur, and the difficulty of having important life issues decided by a judge who knows very little of their personal goals and desires. Those are two key reasons in addition to their lives being put on hold for at least a year while their case winds its way through the divorce process in court, continued time away from work or their home. and living in a constant state of stress. Any experienced litigator has seen countless clients, who chose litigation over mediation, live with these consequences.

If the parties have children, the tension caused by extended divorce litigation will be passed on to them. If they resort to litigation, their quality of life will be jeopardized until they reach a settlement or a judge resolves their case for them.

This is the unfortunate result of litigation. As someone who has participated in many matters which were either litigated or mediated, I see it as my responsibility to inform the parties of the consequences of leaving mediation so that each can make an informed decision. And, yes, in the few instances when someone threatened to abandon the process, they eventually returned to it.

Regardless of the circumstances of the divorce, it is always best to approach the settlement of all issues in the most amicable way possible. I use my experience to guide my clients into making informed decisions, and to recognize that continuing in mediation gives them power over the outcome. I consider that a better process than enduring the stresses of litigation.