One issue that arises frequently is that divorce and other family law cases, if they are contested, can take a long time. A party has twenty days to file their “Answer” after being served. There can be a period of at least a month or two or longer when the parties exchange or have disputes regarding discovery, or file motions for and attend hearings for temporary support, attorneys’ fees and time-sharing. There can be a period of negotiation between the parties or their attorneys, and before too long several months have passed.
In some cases, there is a need for a hearing on temporary support and attorney’s fees early in the case. One party may have the financial resources to support themselves and pay for their attorney while the case is pending, while the other side does not. It makes sense to try to settle these temporary support issues by an agreement, if possible, versus putting money into attorneys’ fees and time for a temporary support hearing.
There is no one solution that fits in all circumstance, but in most cases, barring issues like concerns about safety, it makes sense I believe to attempt to get into mediation to resolve the case quickly, unless one side or the other wants to delay or attempt to use litigation to gain an advantage. The parties can choose to voluntarily and quickly provide all the discovery that is needed, and obtain needed valuations, vocational evaluations, etc. There are plenty of situations in which divorcing couples go to mediation before filing suit to resolve the case, even when there are complicated financial issues involved or complicate issues regarding the children. It’s similarly possible to go to mediation early in a litigated case, even if the case is complex.
There is the limiting factor that at least some percentage of cases involve a party or parties who may not want to attempt to amicably reach an agreement. But for parties who make the decision that fighting or conflict is not in the best interest of themselves or their children, early mediation, or mediation even before filing for divorce in court is a good alternative (there can be reasons sometimes to file a divorce petition first, if one spouse, for example, feels a need in their situation to set a cut-off date for what is or is not a marital asset or liability).
At some point in a litigated case the parties most likely will attempt to settle without knowing for certain how the case would be decided by the Judge; and most family law cases require mediation prior to a trial. Assuming parties can get the information/discovery they need before going to mediation, going through a long litigation process in many situations is not going to make that moment of deciding regarding settlement, in the face of uncertainty about a result in court, any less uncertain. The litigation process may help dissipate emotions by wearing people out or spending enough money that a decision is made to resolve the case; or you may gain an edge over the other party during the litigation process, but litigation can build animosity also. Sometimes a hearing for temporary relief as the case is proceeding can be a bit of a wake-up call for one or both parties – they might see that the Judge doesn’t seem to looking at the case the same way they are. This can help lead to settlement, but at the cost of having the resolution of the case being directed more by the rulings of the Court, versus solely between the parties in earlier mediation; and also with the added litigation costs of each hearing. Again, there is no one approach that is best for all cases – just some factors to consider.
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