NY Appellate Judge Suggests Divorce Clients Should Be Encouraged To Mediate

December 5, 2011
By Andrea Vacca on December 5, 2011 9:00 AM |

I was thrilled to read Hon. David B. Saxe's recent article in the New York Law Journal entitled "Encourage Divorce Clients to Mediate."

Justice Saxe, who is an associate justice at the Appellate Division, First Department, focused on the fact that clients who choose mediation over litigation have more control over their divorce process and the terms of their agreement and this correlates to being more satisfied with the results of their divorce. As he states in his article: "If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce." Exactly.

Many studies have shown that clients who mediate are much less likely to be dissatisfied with their attorneys. This is because mediation, as well as collaborative law, focuses on the client's needs as opposed to their positions. The client who can look back and see that his or her lawyer was truly committed to finding solutions is going to be much more satisfied than the one who spent long hours waiting in court, was forced to endure adversarial and contentious arguments and suffered through the months or even years of litigation while having little control over the process.

There are certainly clients who "want their day in court." They are driven to prove the other spouse is wrong and they want to be heard. However, as Justice Saxe points out, due to increased case loads, even these clients won't be satisfied in court because trial judges are increasingly focused on encouraging compromise rather than trials.

When clients come to my office, I inform them of all the options that are available to them to resolve their marital and family issues, which include mediation, collaborative law and litigation. I encourage other attorneys to do the same. An attorney who can and will speak knowledgeably about these different dispute resolution models will be able to guide their client to the process that works best for them and their family. Using the court system to resolve family disputes should not be the first, knee-jerk response when a divorcing client enters your office. It should be the last.