MEDIATION vs. TRIAL: What's more productive and why

Learn from a high profile lawyer the benefits of settling your divorce outside of the courtroom, including saving you money and mental anguish.

By Stacy D. Phillips
Updated: December 02, 2014
Divorce Mediation

Settling marital disputes out of court through some type of mediation is always the better way to go. Who needs more stress and financial losses!

Typically, there are two different situations that arise in terms of legal battles in family law: those that deal with the division of property and support (child and spousal), and those that deal with child custody and visitation issues. The ones that seem most contentious are those dealing with children.

As you may well know, in California every family law matter that is filed as an OSC (an Order to Show Cause) that calls for a new order or a modification of an existing court order, requires that both parties participate in court mediation. And, there are several out-of-court resolution possibilities in terms of handling custody and visitation issues.

Settlement letters:

  • Attorneys engage in A back-and-forth written dialogue expressing the partiesí interest and desires. Hopefully resulting in a "deal" that is drafted as a Stipulation and Order or a judgment filed with the court.

Settlement conferences:

  • Four way - Both parties and their respective attorneys agree to meet to negotiate issues in dispute. When an agreement is reached, a Stipulation and Order or a judgment is drafted and signed by both parties. One of the attorneys files the document in court.
  • Hired mediator - This could be a retired judge or a disinterested family law attorney or even a therapist. Using the services of a judge are always a good choice. The judge will often say, "This is how I would decide the case if it were in my courtroom." This sense of reality helps dueling parties by promoting "an equal power balance." A family law attorney acting as a mediator has a similar approach. In both instances the professionals are active in the resolution process and regardless of who thinks they have the upper hand, both parties are at parity. If a therapist is used, an attorney will still be needed to draft a pre-document into a Stipulation and Order or a judgment.
  • Disinterested third party - The services of a clergy member or a mental health professional is another possibility. Never opt for a family member or friend (no matter how good their intention to officiate your mediation). After agreements are reached, the third party can approach legal counsel to formally draft the terms agreed upon.

There is no question in my mind that mediation is the wave of the future. So by selecting any of the above mediation choices, those of us practicing family law hope that differences can be resolved with the lesser amount of financial and emotional stress. When differences are resolved through mediation rather than trial, the benefits are many. These possibilities allow both client and attorney to be present. Clients feels insulated and secure, and if negotiations do get heated, attorneys are present and adept at handling their clients calmly and appropriately. You won't find these privileges in a formal courtroom.

If mediation doesn't work, trial is inevitable. I'm always hopeful my clients will solve their differences in mediation. Trials take a toll on people's feelings, pocketbooks and impact the psychological well-being of everyone. In a custody battle children suffer so I ask clients to think of their children first and put their own feelings and resentments aside -- as valid as they may be. Trial is a trauma children being fought over, don't need.

If none of the mediation means work and you must proceed: be prepared! Be realistic and know what the risks are! Know that the judge hearing your case just may not rule in your favor, no matter how certain you are about what you think the outcome should be. Unrealistic expectations can prove disastrous if your case involves a child custody battle. Results of a trial tend to be final whereas mediation can be ongoing and eventually evolve into a peaceful and more equitable resolution.

Q: I'm a 43-year old female with three children. My husband and I have been unable to resolve visitation issues. We're set to go to trial because he has stormed out of attorney-client conferences on several occasions including a mediation session with the court appointed mediator. I don't want to go to trial. What should I do?

A: First: keep your cool. If your ex-husband has stormed out of many a meeting, chances are heíll demonstrate similar behavior patterns in the courtroom. Judges do not tolerate such actionsósubtle or direct -- and his inability to control his temper and his unwillingness to be cooperative could just work in your favor. I've seen this happen many times. So, no matter what, stay composed and appropriate during the entire proceedings. Work together with your attorney and let him or her fend for you.

Q: I am a 29-year old male with twins. My wife and I are in a custody battle over who should have physical custody. I am set to go to a "four-way" conference but I really don't trust my attorney. I've heard her talk to opposing counsel on the phone. It sounds as though the two of them are very good friends. What should I do?

A: In any and all circumstances, you must feel safe and secure with your attorney. Many family law attorneys know one another and have been known to be friendly and courteous with one another; that's not unusual. However, if it appears she is more interested in her rapport with opposing counsel than with you, let your instincts guide you. If you have a feeling something isn't right, it probably isn't. Your attorney should be your advocate. If you feel she isn't, talk to your lawyer and try to resolve your concerns. If that doesn't work, look for someone else to represent you. Remember you have a great deal at stake. And, there are plenty of wonderful attorneys out there to look after your interests.


Stacy D. Phillips is a co-founder of Phillips Lerner, A Law Corporation, which specializes in high-profile family law matters. She is co-chair of the Women's Political Committee and a member of Divorce Magazine's North American Advisory Board. She can be reached at (310) 277-7117. View her firm's Divorce Magazine profile here.

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By Stacy D. Phillips| May 26, 2006
Categories:  Legal Issues

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