In Minnesota the rules for family law require you to at least contemplate mediation prior to filing
motions and going to court. The new rules now (Rule 303) requires that you certify your efforts to the court, that your lawyer and your spouses lawyer have conferred (either in person or by the phone) to talk about mediation efforts.
This blog post is going to discuss the benefits and costs associated with mediation and other ADR requirements.
costs of divorce
We often say that when parties go to trial there are only two winners, the two lawyers involved. And this is true in so many ways. The most obvious benefit to mediate is that it will cost considerably less than going to trial. Despite what many clients think, lawyers need two-three hours to prepare for every hour of trial. In Minnesota, we have usually then have a few weeks to draft our “closing argument” in the form of Proposed Findings and Memorandum of Law. These two documents generally take 7-8 hours to draft per day of trial (this means 3 day trial? 3 days to draft the findings & research the memo) you can see the costs can be truly astronomical. And we are not even talking about an appeal and post-trial motions.
Contrast this with divorce mediation, which typically takes less than a day for straightforward Minnesota Divorces. The mediator will cost from $140-$300 per hour and the cost is almost always split equally. The cost saving can easily be $10,000 even for a normal middle-class divorce.
I spend a lot of time talking about the emotional costs during a divorce and you may think I’m a feel-good, Kumbya singing, ex-hippie, but I’m not! Not by a long shot, but what I’ve seen in my decade plus of doing divorce work is the toll, the emotional toll that a nasty divorce can take a person’s mental health. It’s easy to hear your friends or family tell you not to settle, or even try to mediate but I don’t think they truly understand how incredibly stressful it can be to go to trial in a divorce.
As much as you can see I am a fan of alternative dispute resolution, including mediation, in family law, there are some costs associated with it
If the case doesn’t settle then you have pad for 1/2 of the mediation and your paying for your lawyer to sit there for a good 4-8 hours. In the scheme of a divorce case, the costs are normally only a few thousand dollars, which is small in comparison to trial, but if you are on a truly limited budget you may have to take this into account.
Not all cases should be mediated
If you are claiming that your spouse has sexually abused or physically abused your child then it really does not make a lot of sense to try and sit in a room and settle the case. The same is true if your soon to be ex is completely unreasonable. However, be careful with the last point, often times when you think your ex is totally unreasonable, they often will come to the table if their lawyer talks some sense into them.
Well, there you go, my perspective on divorce and mediation, but before I go I want to address one point and that is the fairly new (and popular) concept that you just need to go to a divorce mediator and not get those pesky lawyers involved. I think this is, perhaps, the greatest system ever devised for us divorce lawyers to fully fund our children’s college education. Why you ask? doesn’t it make sense to just sit down with a mediator and try and work it out? No, absolutely not, I liken it to playing a card game, where you don’t know the rules and finally end up accepting the last thing your spouse offers you. Remember, the mediator is neutral, they cannot and will look after your interests. Further, what I see on an almost weekly basis now is people who tried to do this themselves and then come to me and try and fix their problem. Well, the old adage an ounce of prevention… is never truer than here.
Thanks for reading and as always, if you have any questions or comments either give me a call or send me an email at firstname.lastname@example.org. HOWEVER, with an increased readership (thanks everyone) I’m getting a lot of “quick questions” via email, and as much as I’d like to answer them all, I can’t give legal advice until we have signed a retainer.
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