Mediate or Litigate

Frequently a prospective client is of the opinion they will need to make a choice between litigating or mediating their Dissolution case. This concern is often an illusion.

By definition a litigating attorney is an advocate for the party that hires them. A mediation attorney is not an advocate for either side, but attempts to broker or negotiate a settlement between the parties without advocating either party’s position.

In the event a party making a choice between a mediator and litigator does not require an advocate for any of their positions or issues, a mediator is probably an easy choice.

However, in the event the party to the divorce is of the opinion their spouse is either going to be difficult or will disagree on certain key issues, it is important that party has an advocate in their corner advising them of their rights and attempting to persuade the other party or the court of the correctness of their position. In these cases a litigation attorney is definitely preferable.

Many people do not know, or fail to appreciate the fact, that an effective litigator is constantly attempting to mediate or negotiate the disputed issues in the case. As soon as the attorney has determined the appropriate facts of the case, or the client’s version of the facts and the applicable law, an effort should be made to settle the case through correspondence, 4-way meetings, or in certain instances, hiring a Private Judge. The litigating attorney should always continue efforts to mediate a settlement of the unresolved issues. In a small percentage of cases, some issues may need to be litigated before a judge who will make the decision. In these instances, a party is best served by the attorney being a litigator, rather than a mediator.
Issues that are frequently disputed would include the following:

1. Custody/Visitation – proper parenting plan;
2. Amount of Child Support;
3. Amount and duration of Spousal Support;
4. Valuation and division of Community Property;
5. Determining if either party has a Separate Property interest in the property or assets.

Generally, litigation is more expensive than mediation. However, often the results are far more satisfactory if the party has an advocate in their corner. An assessment should be made to determine if the additional expense is a justified investment in the outcome of the case in deciding to hire a litigator as opposed to a mediator.

Brian K. Brandmeyer is a founding partner at Brandmeyer Gilligan and Dockstader, LLP, and serves as the firm’s managing partner. Mr. Brandmeyer has extensive experience in handling complex financial issues, including business valuations, cash-flow analysis, property determinations and child custody disputes. Mr. Brandmeyer is experienced in representing clients in all phases of divorce matters.

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