Thinking outside the box about mediation

Clients and family law attorneys are by now very familiar with using mediation as a technique to settle divorce cases. What is less well understood is that there are a myriad of ways to use mediators to make litigation of divorce cases more efficient and streamlined without giving up the right to have their trial or their “day in court” if that is what the parties want.   The following are some examples of situations where mediators can be involved in constructive ways, short of being asked to settle the entire case:

Identifying and retaining neutral experts: If the parties to a contested divorce need a valuation expert, an appraiser of tangible property or real estate, a tax expert or ERISA law expert, they often expend large sums of money selecting their own experts who by definition will stake out positions that aggressively support the client who has retained them. If the parties try to agree on a neutral expert to be jointly retained, that process in and of itself can result in thousands of dollars of fees being paid and wasted time, before a joint expert is retained. As a neutral mediator I am happy to select a joint expert for clients. If that is all I am being asked to do, I would probably do it at no charge if I thought I could do it in a fairly short amount of time by making a few phone calls. Because the expert is chosen by a mediator there is less likelihood that the parties will feel the joint expert is biased.

 

Discovery disputes: Scheduling of Motions relating to discovery is not only a slow process in court, but Judges hate dealing with discovery issues. The parties risk alienating the judge and in most instances the judge will appoint a discovery master anyway. Why not agree to use a discovery master, or mediate the discovery issues. Often if the parties discuss their need for information with a mediator, there can be ways of obtaining the necessary information that are less intrusive and more efficient. It may be counter-intuitive, but getting a neutral to deal with discovery disputes can be a lot less expensive than two lawyers fighting with each other about them.

 

Management or monitoring of case logistics: Frequently when there is an appraisal of real estate or business property both clients and their lawyers are present. When real estate is being sold, both parties retain real estate lawyers to be involved in the drafting of documents or selection of real estate brokers. There are countless examples of events in a divorce case where the clients feel it necessary to have both lawyers present to avoid real or imagined opportunities for mischief. Why not pick one professional to attend or manage these events as a neutral?

 

Accounting: Frequently parties are in dispute over accounting issues. For example there are claims that a joint account was mismanaged or bills were unpaid, or bills that should have been shared, were not shared. Or there are claims that money has disappeared. These disputes can be maddening enough without making them worse by asking the parties lawyers to fight them out. Why not retain a neutral accountant/mediator to deal with it?

 

If we think a little bit out of the box, it will become apparent that there are many tasks in a divorce case that can benefit from being attended to in mediation, rather than court. And the parties can still retain the right to have the important issues decided by a judge, if that’s what is necessary.

 

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