Why Mediation can be better than going to Court

25 August 2014

Mediation (also referred to as Family Dispute Resolution) is a process (outside of the Court Litigation process) in which an independent Mediator helps people affected by separation or divorce to resolve some or all of their disputes with each other.  It is one of the ways in which an “out of court settlement” can be achieved even in difficult, complex or emotionally charged cases. 

A well conducted mediation in a family law dispute can provide a mechanism whereby the dispute can be resolved with each party still having a degree of control over the end result.  Once a case is in Court before a Judge at a Final Hearing, the warring parties hand over control to the Judge and the Judge will impose a result.  The Judge, after hearing the evidence in a case, will usually take some time (which could end up being months) to consider his or her Judgment. 

When the Judge hands down the judgment, it may be a result which neither party thought was possible.  No lawyer can guarantee what decision a Judge will make.  The only guarantee in Court Litigation in Family Law disputes is that it will cost each party a great deal of money and involve a great deal of anxiety, due to the uncertainty of the result. 

Clients sometimes want to go to Court based on a moral principle of  “not letting the other spouse get away with it”.  This is the client’s right, but don’t expect to be able to “tell your story” to the Judge as what you believe to be important and relevant may not be admissible evidence.  In Court, the legal rules of evidence are applied and you may not be able to tell your story as you would like, as the evidence may be inadmissible.  I understand that it is difficult for some people to “let go” of the moral principle.  Unfortunately, for those people it will often result in additional legal costs to no avail. 

Having conducted thousands of Family Law court cases over the past thirty years, I can tell you that clients will have a tremendous sense of relief if their case is settled out of court.  The relief comes about because the argument comes to an end and the client can then “resume normal life” without the stress of dealing with ex-spouses, the courts and lawyers (and paying for the privilege!)  When a case is settled, it sets most people free to move on with the next stage in your life- which may even involve a new relationship (without the baggage from your previous one).

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