Cost of Litigation Versus Mediation in Family Law

Law is a business. And lawyers are in business to make money. In many cases, lots of it. In most civil cases, you need the sage advice of a person educated in statutory and case law to protect your legal rights and interests, and to advocate on your behalf. However, there are some civil disputes, such as divorce or modification of child support, which do not require legal counsel. Do-it-yourself divorces and pro se (representing yourself) litigants are on the rise, especially as the economy continues to put the squeeze on families financially and people simply cannot afford to hire lawyers. Remember: You didn’t need a lawyer to get married, and you don’t need one to get divorced.

Whether your relationship is contentious or amicable, once attorneys are involved in resolving your domestic dispute, costs begin to soar. It is an incontrovertible truth that lawyers are financially incented to work up a file, and often get in the way of timely and reasonable resolution. It is an unfortunate truth that the court system, despite its best efforts, is not adequately set up to adjudicate domestic disputes. At best, it takes a sidelines approach by forcing the parties to mediate before even having the privilege of being heard by the court, or, by taking a “cookie cutter” approach by forcing decisions upon the parties that may not be in their family’s best interest.

Attorneys Fees and Costs – Perhaps you are leaning towards litigation because you believe that your opponent will be forced to pay your legal fees. Perhaps your original agreement actually articulates that the party who breaches an agreement will be forced to pay the non-breaching party’s attorneys’ legal fees and court costs. Perhaps your attorney has even told you that your attorneys’ fees will be paid for by the opposing party. Here’s the reality: Courts routinely disregard the language in these prior agreements, instead focusing solely on “need and ability to pay.” If there is a need and the opposing party has an ability to pay, attorneys’ fees may be awarded. What this means, however, is that additional discovery will have to be issued seeking financial information of the parties ($$$), subpoenas will be issued seeking financial and employment documentation ($$$), motions will be filed objecting to the subpoenas or for failure to timely comply ($$$$), hearings will be scheduled ($$$$$), and in the end, the legal fees have dramatically increased arguing over attorneys’ legal fees… and the underlying dispute hasn’t even been addressed! This chapter of the litigation process can easily run up an additional $5,000.00. In the end, the court will typically award only partial fees, meaning that you are still responsible for the balance. Was it worth it?

Even if you are able to approach your dispute in a cooperative manner, engaging an attorney to speak on your behalf is a costly proposition. Attorneys are trained to “zealously represent their client.” This often translates into stoking the already-burning embers into small fires, to keep the file active. Maybe it’s not done purposefully or maliciously, but certainly, there is a rationalization that they are justified in their actions in order to best represent their client. Unfortunately, this tactic seldom results in resolution of the original disputes, and often creates new ones.

The costs involved in mediating versus litigating family law disputes are dramatic. Of course, the complexities of a particular family law case must be factored into any formula, however, generally speaking, a typical case negotiated using an alternative dispute resolution method such as mediation may range in cost from $500.00 – $3,000.00. The same family law case may cost anywhere from $15,000.00 – in excess of $35,000.00 to litigate. Consider the following:

Costs to Mediate:

Initial 2-hour consultation ($250.00 – $500.00)

Follow up meeting (4 hours at $300.00/hour)($1,200.00)

Preparation of Mediated Settlement Agreement ($500.00)

Preparation of additional documents, such as Parenting Plan, Child Support Worksheet, and/or Dissolution filings (if necessary) ($500.00)

*APPROXIMATE TOTAL COST OF MEDIATION: $500.00 – 2,500.00

Costs to Litigate:

Initial Consultation ($250.00 – $500.00/hour)

Retainer ($2,500.00 – $5,000.00)

Filing Initial Pleadings (Summons and Initial Petition) ($1,200.00)

Responding to Answer and/or Counter Petition ($1,000.00)

Serving Discovery ($500.00)

Responding to Discovery ($750.00)

Preparing Financial Affidavit and Mandatory Disclosure Compliance ($1,800.00)

Preparing Motions ($750.00)

Preparing Motion for Attorneys’ Fees ($750.00)

Responding to Motions ($750.00)

Hiring Experts ($2,000.00)

Hearings/Court Appearances ($4,500.00)

Mediation (Court-Ordered) ($1,200.00)

Co-Parenting Classes and Preparation of Parenting Plan ($500.00)

Trial ($7,500.00 – $10,000.00)

Appeal ($5,000.00)

*APPROXIMATE TOTAL COST OF LITIGATION: $32,700.00+

Mediation isn’t a “let’s hold hands and sing Kumbaya” approach to dispute resolution. However, mediation does allow the parties to control their own destiny, considering their unique issues to find a resolution that is mutually agreeable by the parties… at a reasonable cost. The sheer volume of family law disputes clogging the court systems, in contrast, forces a tendency to approach these cases in a “cookie cutter” fashion, often resulting in resolutions not particularly agreeable to either party… and extremely expensive and unreasonable cost.

** These are approximations and are contingent upon complexities of each individual case and time involved with the parties.