Unlike in litigated divorce, in divorce mediation the couple is in control of the process and knows the cost from the outset.
One of the first things that divorce mediation clients ask is “How much is this divorce going to cost?” This is a reasonable question, and one that can be answered, unlike the same question in a litigated divorce, realistically.
This is possible because in mediation the costs are identified up front and the process moves along quickly, or at least as quickly as the couple would like to proceed. Litigated divorce, in contrast, requires an initial usually significant retainer payment and then, in the Capital Region, hourly rates often between $300 and $500, depending on the lawyer. And then the process is controlled by the parties’ attorneys.
In addition, in a litigated divorce, if the parties do not settle, there is no guarantee to predicting how a judge will decide questions of child support or spousal maintenance. In such matters there are no consistent patterns. Clients are at the mercy of the judge, and dependent on the attorneys. In mediation, the clients are responsible for these decisions.
Let me illustrate how expensive and frustrating the litigated process can be. I serve on a Lawyer’s Fee Arbitration Panel. Our task is to determine if an outstanding fee due to an attorney is justified. When a client hires an attorney he or she signs a Retainer Agreement. This agreement, a contract between the client and the attorney, outlines the terms and conditions that will exist between the lawyer and the client. Included in this agreement is the amount of the retainer fee, the hourly rate, the time frame for billings and other conditions that will govern the relationship between lawyer and client.
There are two examples that I want to share that provide some insight into what can become the staggering cost of a litigated divorce. The first occurred a few years ago. The law firm sought arbitration for payment in excess of $17,000. The client had received statements every two months outlining the work that the firm had done and the cost for that work. Over the course of two years the client had decided he was not happy with the attorneys and refused to pay. The arbitration panel found that the work documented by the lawyers had merit and awarded the firm full payment. The client had an expensive bill to pay, but still did not have a divorce!
The second example is similar. It involved a woman who had a balance with her law firm of over $25,000. She refused to pay because she believed that after paying $500 for a filing fee that additional legal fees would be limited to $500. The divorce proceeding was started in 2011, is still ongoing, the lawyers were awarded their fee in arbitration, and the woman still does not have a divorce.
These cases illustrate how expensive litigated divorce can be. The process and cost of litigated divorce stands in stark contrast to mediated divorce, where clients know the cost and control the outcome.