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Driven by the economy, divorcing couples across the country are increasingly using mediation and the collaborative process – for a fraction of what it costs to litigate a family law case.

For couples who are divorcing and losing some of their assets anyway, cost savings is especially important, said Henry Gornbein, a partner at Gornbein Smith Peskin-Shepherd in Bloomfield Hills, Mich.

“Litigation is so expensive and clients want to keep things as cost-effective as possible, without being in and out of court every week,” he said.

Gornbein recently finished mediating a divorce, with a series of meetings and no court appearances, saving the couple “several thousands of dollars” over the cost of litigation.

“I often ask my clients, ‘Do you want to spend your children’s college education [in court] to resolve your problems, or do you want to keep the money for your family’s future?’” Gornbein said.

Although no statistics are available, Howard I. Goldstein, a partner at Rosenberg, Freedman & Goldstein in Newton, Mass., said that anecdotally, collaborative lawyers are much busier these days.

Compared to just a year ago, his firm has doubled the amount of mediation and collaborative law work in family law cases, he estimated.

“It’s really on fire,” Goldstein said.

Reducing cost

In many cases nowadays, the parties are dividing debt and not equity, which means they need to spend as little as possible to get the process done, Gornbein said.

Other ways to resolve a divorce are attractive because it is “shocking how expensive litigating a divorce can be,” said Goldstein, who just litigated a case that culminated in a two-day trial and cost his client $150,000 – and the client’s ex-wife paid twice that.

Also, the economy has hit state courts hard, Goldstein said, meaning that a litigated case can take even longer because of overworked judges, fewer court personnel and other cutbacks.

As an alternative, mediation is clearly the most inexpensive choice because the parties typically work with a single lawyer and split the costs.

The recession has made people “a lot less able and willing to fight,” said family law attorney Catherine La Fleur, a sole practitioner in Milwaukee. “I got a call today for a case where I’m the guardian ad litem and the parties want to sit down and try to mediate instead of going through a custody battle.”

The work required of a guardian ad litem – and cost that goes along with it – can add up quickly, La Fleur said.

She would have talked to both parties, interviewed a number of witnesses, visited the children at the mother’s house, visited the children at their father’s house, looked at their school records, reviewed the medical records, and then documented all her work in a final report – all time that would be billed to the parties.

Instead, they decided they “want to get this done without me having to do all that work,” which would have been much more expensive, La Fleur said.

Collaboration

In addition to mediation, the collaborative law process has become a more popular choice for couples looking to cut costs.

The collaborative process is a form of dispute resolution where both sides have lawyers and participate in what amounts to a four-way negotiation, often with the assistance of other specialists, such as a divorce coach or a child psychologist.

Stuart Webb, the founder of collaborative law and a family law practitioner in Minneapolis, estimated that a collaborative divorce costs one-third the amount in fees paid in a typical litigated divorce.

Collaborative law, which began in the 1990s, “continues to get bigger” and more popular, Webb said, and the economy is a big reason.

While the team approach may not sound cheaper because of the number of players, the specialists are working for both parties, Webb noted.

“A neutral financial person sits down with the two parties and puts all the information together and comes in with a memo, which saves so much time and money for the parties,” he said. “For one thing, they are paying one person rather than two experts and they don’t have the pay the lawyers to review all the files separately and then come together – it’s a tremendous savings right there.”

Goldstein estimated that a collaborative divorce could range from $10,000 to $20,000, depending on the number of professionals involved in the process.

While it costs more than mediation, the cost of the collaborative approach is “no comparison” to litigation, Goldstein said.

Business opportunity?

Of course, mediation and collaborative law aren’t for everyone.

La Fleur said people have a variety of reasons for wanting to litigate, from those who are convinced they will win to those who really don’t want to get divorced and keep hoping that the other party will come back to them.

Other people don’t feel comfortable in the mediation setting.

Goldstein recalled one divorcing couple where the husband was a scientist and the wife was a lawyer and the husband didn’t want to be alone in the room with two lawyers.

He agreed to a collaborative divorce, however, which was a way to save money without the husband “feeling overwhelmed by not having an advocate,” Goldstein explained.

The rise in mediation and the collaborative process presents a business opportunity for family law practitioners.

Gornbein predicted that the trend will continue even after the economy improves, and lawyers should be ready to keep things at a lower cost for their clients by offering ADR services.

Clients will continue to want things done more cost-effectively, Gornbein said, and “lawyers are going to have to be adaptable to stay alive.”

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

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