When I went to law school over ten years ago, alternative dispute resolution was the buzzword going around. Mediation was one of the forms of alternative dispute resolution that was touted. It met with mild interest from the students and is generally received the same among practicing lawyers. After all, they are in the business of litigating, spent many years in law school and in practice learning how to litigate, and are personally vested in the litigation process because they more they litigate the more money they make.
Perhaps in areas of law other than family law, that mind set is fine. If you have a class action suit trying to get some nameless corporation to compensate a group of people for damages they suffered and some other faceless insurance company is there to pay out the claims anyway, why not litigate they heck out of it? There is nothing to lose from the plaintiffs’ side of things and the defendant has everything to gain by not having to pay (that’s why the insurance company generally defends – they’re the ones holding the bag). But in a family law situation community property and the spouses’ incomes are the sources used to fund litigation. High litigation costs only damage the parties by burning up community property and using up current incomes that might better be spent on the parties’ children. The losers are the parties themselves and their children. It is in everyone’s self-interest to try to minimize the costs of divorce and conserve resources for the parties and their families. Many people are finally realizing that a litigated divorce means literally giving a portion of the parties’ property and handing it over to a couple of strangers. That is one main reason why mediation is becoming more popular. For basically one-half of what you might pay just one lawyer as an initial retainer, you can resolve your divorce and equitably divide community property between the parties (that’s a two-way division) and not between the parties and their lawyers (a four-way division).