At Liaise Divorce Solutions we are often asked the question, “when is the best time to start mediation”? The answer is the same as when is the best time to vote in Chicago? Early and often!
Or, to put it another way, it’s never too late to mediate.
As a civil attorney for over 20 years I would always urge opposing counsel to move our respective clients’ case to mediation at the earliest possible time. The sensible, righteous attorneys would agree and we would commence the process of choosing a mediator to help our clients move as quickly and inexpensively as possible to settlement.
Far too often my counterpart would respond to an offer to mediate early with words to the effect that, “this case is not yet ripe for settlement”. Let me translate, not ripe for settlement is lawyerese for, “I have not yet billed enough hours to this file”.
Perhaps I am being cynical. Of course there are cases where the operative facts are not fully known by one side or the other, or where the brilliant examination by the attorney taking a deposition will prove to be the determinative factor in winning a case. But let us not forget that this process is known as discovery and as often as not the participants in the lawsuit know all there is to know about the facts and the discovery process is a very expensive waste of time. It is rare indeed that the response to an interrogatory, request for admission or other discovery tool yields anything of true merit to your case. Discovery is a game where highly skilled lawyers are crafting responses that are guaranteed to yield nothing of value to the other side.
In a family law case the foolishness of delaying mediation to conduct discovery is even more pronounced. Far and away most married couples know all there is to know about their assets and debts. There may be situations where one party has a secret Swiss bank account or hidden diamonds, but that is a rare circumstance indeed. Mostly couples in a marriage know where one another works, they know what the W-2 looks like, they know where they bank and they have seen the Profit Sharing or Retirement Plan statements.
There is no need to wait to begin mediation. What is more, the legal process the mediation navigates requires that the parties disclose to one another all assets. This means that the need for discovery is greatly reduced because the law requires each party to make full disclosure to the other. Accordingly, the earlier the mediation commences the more money the parties can save.
Sometimes we at Liaise hear from people engaged in a nasty, expensive legal battle and they are unsure if they still “qualify” for mediation and what can they tell their lawyer?
All legal clients should think of themselves as legal “consumers”. It is your case, it is your problem and it is your money! Your lawyer works for you at your pleasure! At any moment that you think it is time for a new direction, all you need tell your lawyer is to return your file, you want to try mediation. They are ethically and legally obliged to do as you say. You are the boss. If you are concerned that your lawyer may not be able to get along without the money she has been charging you each month, don’t be ridiculous. As soon as your money runs out you are going to find out that your lawyer is very much like the dryer at the laundry mat. When your dimes stop going in she stops turning. Why should you be more concerned for her financial well being than she is for yours?
Sooner is best, but it is never too late to try mediation. Simply call Liaise and we will contact the other side and give them the good news. The good news is that if they are willing to act like an adult, sit down and rationally discuss the issues, there is a cheaper, faster, better solution to your legal problems.