“I want to mediate our divorce, but my spouse is bent on going to court. What can I do?”
For better or for worse, everyone in this country has a right to his / her day in court. If your spouse is bound and determined to go to court, there’s ultimately not much you can do about it. You might, however, be able make that day shorter and less stressful.
We’ll begin with the assumption that you have tried with your spouse to negotiate your divorce on your kitchen table. Most couples have a hard time with this. By definition, there’s already plenty of tension in the relationship. A good lawyer, or two, can actually make the process more manageable. One option is mediation, using one attorney. That attorney won’t represent either of you, and will work toward a negotiated solution. The primary benefit is that both of you will then have solid legal advice on which to base your decisions. Often, either or both spouses will choose to confer with his or her own independent attorney, too.
In my practice I get calls every day from people who had chosen not to use a lawyer, even in cases involving homes, children, pension plans, or all of the above and more. They later discovered that a matter that could easily have been resolved with competent legal advice now is requiring expensive and complex legal damage control. What’s happened at that point usually is that he or she has made some decisions based on (often mutual) good intentions and that has backfired on them as they didn’t fully understood the legal implications. Nowhere is it truer that “an ounce of prevention is worth a pound of cure.” Mediation offers a way to resolve some, most and often all the issue without anyone even having to appear in court. It’s an alternative that is not necessarily less expensive. (Obviously, it isn’t appropriate in all cases, such as cases involving domestic violence or child abuse.)
Whether you decide to mediate or litigate, it’s critical that you get good legal advice so that you understand the implications of your decisions, for today, five years from now and, in some cases, for a lifetime.
Paul Staley is the founder of the Law Offices of Paul Staley in San Diego. In his practice, he favours alternative dispute resolution to help his clients reach positive, productive, family law outcomes.