What happens when mediation fails?
The clear policy of our courts is to encourage and facilitate out of court settlements of disputes. In fact, as you have heard me tell you many times, mediation settles 90%+ of all disputes. But disputes do sometimes become deadlocked; trials do happen and "winners" and "losers" are declared.
Below is what can be expected when mediation does not settle a family law case.
First, a trial date is requested and set by the court once the parties have certified that they have attended mediation and it was not successful. We are anticipating resuming in person trials later this summer. The trial date serves as a deadline for the parties to aim for in order to get the case ready.
Next, any outstanding discovery issues must be resolved. Most of us complete discovery prior to mediation, but there are almost always outstanding requests: certain requests were "overlooked" or refused, or responses provided require follow up requests. The rules of civil procedure set forth the steps necessary to compel/complete discovery.
Witnesses: Witnesses come in 2 categories, fact witnesses and expert witnesses, and the parties need to determine who they are and how many will be needed. Many cases require expert testimony on financial or other matters. The most common need is for a forensic CPA to establish the value of a business to investigate the marital finances for fraud. An expert can provide an opinion on a substantive issue in the case, such as the value of an asset or the intentional wasting of a marital asset. Fact witnesses testify to what the saw and did regarding the allegations raised in the pleadings.
Children's issues: Are children involved? If so, a Guardian will be appointed to represent their best interests. Do the allegations require a custodial evaluation by Psychologist? Should a request be made by either party to have the children interviewed by the Court?
Is alimony an issue? What is the supported spouses monthly financial need? What is their earning potential, their physical and mental health, etc... Each of these issues need to be explored and litigated with fact and expert witnesses.
Each issue (meaning each marital asset, each child, the alimony and child support requests) must be separately and individually raised, litigated, and ruled upon. Each witness will be subject to direct examination, cross examination and reply examination. Each and every document submitted must be separately alleged, authenticated and submitted into evidence. A Guardian will have prepared a report prior to trial upon which she/he will be examined, cross examined and questioned by the judge.
A rather simple divorce trial can cost anywhere between $20,000 and $40,000 per side, and the more complicated and contested the issues, the greater the cost. Not to mention the emotional toll that will be taken on the children and parties.
So is it any wonder why our courts have such a strong policy on out of court settlements?
I hope this Tip is helpful,
Be well and stay safe,