Numerous articles have been written on the pros and cons of divorce mediation. The purpose of this writing is to encourage matrimonial attorneys, as a point of financial and general self-interest, to encourage their clients to consider divorce mediation. I recognize that a lawyer may earn more in the short term from a client whose divorce is litigated rather than mediated, but that should not prevent lawyers from exploring alternatives to litigation. If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce.
It is often observed thatthe process of resolvingthe legal issues of a litigated divorce is time-consuming. The nature of civil litigation requires that a certain amount of time is devoted to each stage of the litigation—motions, discovery and pretrial conferences. Unless a matter is settled at an early point, the litigation process often extends into years. It also exacerbates conflicts instead of resolving them amicably.1 For one thing, probably due to the adversarial nature of the process, each statement and every document provided—even those generally considered to be a straightforward statement of facts, such as a net worth statement — will likely seem skewed to the perceived advantage of the party providing it, rather than prepared with neutral accuracy. The adversarial tone in the presentation of facts can create a contentious atmosphere.
The litigation process is also time-consuming in the sense that it requires litigants to attend court at various points during the process, with each occasion causing the expense and difficulty of missing work and needing to arrange for child care. Yet, these court appearances often involve a lot of wasted time devoted to the frustrating process of sitting and waiting. So, not only do the parties have to put up with the unpleasant experience of living in a state of limbo during the extended period of the divorce process, but the increasingly contentious and time-consuming nature of litigation itself increases the unhappiness of the litigants.
Added to that is the fact that legal fees can often be enormous, sometimes well into the six figures for the more contentious cases. Even when the process is limited to a less extreme amount of vitriol, and where the discovery and pretrial process does not require extraordinary efforts, the time required of both the client and the attorney, and the resultant cost, remains substantial. It should also be remembered that acrimonious divorces may be followed by additional, even more contentious, post-divorce enforcement proceedings, which can be expensive as well. Furthermore, it has been noticed that when the issues are left to be determined by the court, at least some issues may be resolved to nobody’s satisfaction.2
The attorney’s inability to protect the client against the unpleasantness of divorce litigation, the delays and the expense, may cause clients to become dissatisfied with counsel, whether that dissatisfaction is rational or not. Dissatisfaction and unexpected costs often lead to change of counsel and to a refusal to pay the legal bills, and by the time the client decides to change counsel, the former lawyer has often fallen behind on fees. At that point, the client is focused on paying the new lawyer, and the former lawyer is forced to sue to recover past due fees. This uses more non-compensable time, and rarely can the lawyer recover even a substantial percentage of the amount billed. It is also possible that the attempt to recover fees will be met by a complaint to the disciplinary committee.
Client dissatisfaction, unpaid fees, and the firing of lawyers are virtually standard parts of the divorce litigation process. They are not a reflection of the attorney’s competence. Yet clients who have had such a negative experience are unlikely to speak highly of their former attorney to others seeking recommendations for their own divorces.
Mediation is much less likely to result in client dissatisfaction, a result borne out in many studies.3 For one thing, it is more focused on the needs of the parties. Far less of their time is spent waiting; instead, the majority of the expended time is devoted to exploring disputes, proposals, suggestions and possible solutions. The lack of any formal legal procedures, indeed, the lack of formality generally, also allows mediation to get right to the heart of the issues. Importantly, it also allows the parties greater control in shaping the terms of the resolution of their disputes, so they can avoid a determination unsuitable for either party. It is said that people are more likely to abide by a judgment the terms of which they themselves negotiated, than a judgment representing an order of the court.4
There may be cases where mediation could be an inappropriate choice, as some of its opponents have argued. It has been remarked that litigation may be the better choice where the paramount concern is protecting and enforcing one spouse’s legal rights rather than reaching some sort of middle ground.5
This generalization may be correct, but it holds true more in the abstract than in practical reality. While it is true that being awarded a judgment in one’s favor and against one’s opponent may represent a vindication of the victor’s position such as cannot be approximated in a mediation,6 it should not be forgotten that, due to court case loads, divorce litigation is primarily focused on attempting to promote settlement rather than on resolving matters at trial. So, a party who chooses to litigate rather than mediate is nevertheless likely to experience substantial pressure toward compromising, rather than achieving the envisioned vindication and victory.
I do not mean to minimize the concerns often expressed about the use of mediation where there is an imbalance of power between the parties, through which one of the parties may be prevented by fear, intimidation or low self-esteem from asserting his or her own interests, thereby effectively ceding to the other party an undue advantage and possibly leading to the acceptance of an inequitable settlement.7 However, there are ways to mitigate that effect, such as skilled mediators employing effective management techniques,8 and the oversight of counsel.9 Indeed, since, in contrast to litigation, parties who choose to mediate may choose their mediator, in fact, the careful selection of the right mediator may be the more effective means of protecting against one-sided resolutions or a failure of one party to effectively assert his or her position.
In any event, it ought to be part of the task of the matrimonial lawyer in an initial consultation to evaluate whether the mediation process would be suitable, or beneficial, for the client. Where mediation seems the more appropriate route, the attorney’s help may still prove valuable throughout the process, from assisting in the initial choice of the mediator, to help ensure that the chosen mediator possesses appropriate experience, knowledge, skill, sensitivity and creativity to handle the particular dispute,10 to, ultimately, reviewing any agreements reached.
A matrimonial lawyer who views mediation as contrary to his or her personal financial interests or professional standing, and who therefore declines to provide clients with an indication of its benefits in comparison with litigation, may be well advised to reconsider. While in the short run, a lawyer whose client attends divorce mediation stands to lose some fees, “the reduction in per case fees can be offset by a higher volume of satisfied, well paying, high quality clients.”11 A lawyer who shepherds a client through a far less unpleasant mediation process to a successful conclusion is more likely to be highly valued and recommended by that client to others. I suggest that it ultimately inures to a lawyer’s professional and economic advantage to have many satisfied clients, even where they pay only moderate fees, than to have a smaller number of unhappy former clients.
The words of Abraham Lincoln are worth paying attention to in this context. He said: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, expenses and waste of time. As a peacemaker the lawyer has the superior opportunity of being a good man. There will still be business enough.”12
As Lincoln observed, the cost in time and money of litigation may make the nominal winner turn out to be the real loser, making a mediated solution the better option. But, it is also worth noting that ultimately, in the long run, it need not have a negative impact on the attorney’s earnings.
David B. Saxe is an associate justice at the Appellate Division, First Department.
1. See Abraham, “Divorce Mediation—Limiting the Profession to Family/Matrimonial Lawyers,” 10 Cardozo J Conflict Resol 241, 243 [Fall 2008]; Meyers, Alternative Dispute Resolution Symposium: “Power (Im)balance and the Failure of Impartiality in Attorney-Mediated Divorce,” 27 U Toledo L Rev 853, 856 [Summer 1996]; McEwen, Rogers and Maiman, “Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation,” 79 Minn L Rev 1317, 1323 [June 1995].
2. Abraham, supra, note 1
3. See Tyler, “Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform,” 45 Am. J. Comp. L. 871, 878-879 [Fall 1997]; Meyers, supra, note 1, at 857.
4. Meyers, supra, note 1, at 857; Tyler, supra note 3 at 878.
5. See Langan, “‘We Can Work It Out’: Using Cooperative Mediation—A Blend of Collaborative Law and Traditional Mediation—To Resolve Divorce Disputes,” 30 U Texas Rev Litig 245, 255 [Winter 2011]; Emery, “Divorce Mediation: Research and Reflections,” 43 Fam Ct Rev 22, 28 [January 2005]; Meyers, supra, note 1, at 860.
6. Langan, supra note 5.
7. See generally, Grillo, “The Mediation Alternative: Process Dangers for Women,” 100 Yale L Rev 1545 ; Bryan, “Killing Us Softly: Divorce Mediation and the Politics of Power,” 40 Buff L Rev 441 .
8. See Utzig, “Entering the Debate on Spousal Abuse Divorce Mediation: Safely Managing Divorce Mediation When Domestic Violence Is Discovered, 7 Circles,” Buff Women’s J L & Soc Pol 51, 64 [Spring 1999].
9. See American Bar Association Standards of Practice for Lawyer Mediators in Family Disputes, Stnd I, consideration G  ["The mediator shall inform the participants of the need to employ independent legal counsel for advice throughout the mediation process"]; Rosenberg, In Defense of Mediation, 33 Ariz L Rev 467 ; McEwen, Rogers and Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn L Rev 1317 [June 1995].
10. See Philips, “The Obligation of Attorneys to Inform Clients About ADR Mediation,” 31 Western St U L Rev 239, 261 [Spring 2004].
11. See Peterson, “Getting Together: Mediation’s Big Secret Is Coming Out in the Mass Media,” 28 Ak Bar Rag 14 [Spring 2004].
12. Abraham Lincoln, “The Collected Works of Abraham Lincoln: Notes for a Law Lecture” vol. 2, 81 (Roy P. Basler ed., Rutgers 1953).