Bad Reasons to Choose Litigation Over Mediation/Martin Rosenfeld, JD

Posted on June 16, 2019

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America is known as a litigious country. While resorting to Court over mediation is costly and anguishing, many people choose this route. Here are some bad reasons for choosing the litigation option:

*I CAN GET A BETTER DEAL IN COURT THAN I CAN THROUGH MEDIATION.

Surely there are situations where your case is so strong you are virtually assured of a favorable Court ruling. The fallacy at work here is that you never know what may happen in a Court battle. The fact that others have gotten a favorable ruling may not be very predictive of your own result. Differences in judges, fact patterns, and even attorneys may lead to different results than you were led to expect. In addition, given the burdens, time expended, and lifelong enmity that may result from litigation, who is to say that the best result, even if an apparent “slam dunk”, is what is truly in your best interest.

*THE COURTS ARE BEST EQUIPPED TO MAKE DECISIONS REGARDING THE CHILDREN.

Bringing the courts into the lives and future direction of your children’s destinies is a misguided decision in many cases. Do you think the Courts can decide what is in the children’s best interests better than the parties themselves? How scarred may children be by Court intervention and dominance in their lives? Do you really want the decision about your children’s future to be totally in the hands of a third party?

*I DO NOT NEED MEDIATION BECAUSE MY MARRIAGE CANNOT BE SAVED.

There may be a case here or there where mediation can get the parties to consider reconciliation or a return to marital therapy. However, this is not why people mediate. They mediate because they know they wish to divorce but want to avoid the heavy toll on finances, time, and mental health. The mediator is not a marriage counselor. S/he is a professional who will work with you in trying to attain a resolution that both parties can live with. There is life after divorce. A mediated agreement tries to up the odds that the next chapter of your life with be productive and fulfilling. Trying to get that outcome through litigation is an uphill climb that rarely works. Mediate don’t litigate.

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