ONDA partner Keith Nelson is extensively quoted in this year’s Family Law issue of D Magazine. In “Mediate or Litigate?” he discusses factors that may convince spouses to steer their divorce away from the courtroom.
“An increasing concern in family law courts is the strict time limits imposed by some judges,” Keith said. “Many have a template where each side may only be allowed 20 minutes at a temporary hearing to prove a major issue, like why our client should be awarded custody. We may have mental health professionals, special facts witnesses, and the parents themselves ready to testify, but there is no way to adequately present all of this to a judge in such a short time. Then, in some courts, even in complex family law litigation, each side may only be allowed two to three hours to present their case during final trial. This can be very challenging, and often impossible, in high-conflict cases that have a lot special issues to consider. The result is often that the court’s ruling doesn’t mirror the facts.”
Later, Keith cautions that there remain issues which can hinder a successful mediation:
“While the vast majority of family law cases ultimately settle at mediation, the timing of mediation can be a critical factor in whether the case settles or not,” Keith said. “If a case is mediated too quickly before the facts are sufficiently developed, then one side or the other may feel they have an edge. Conversely, if a case is sent to mediation too late, such as on the eve of trial, one or both parties may feel they have invested so much time and money by that point that they become entrenched and decide they might as well go to court. Both of those scenarios can increase the odds for a failed mediation.”
Despite these issues, however, Keith says circumstances are such that many prefer going the mediation route and resolving their divorce as quickly as possible.
“Some divorcing couples with complex issues that require the court’s attention are throwing up their hands in frustration because it can be too difficult to move the ball and get a case to court. Mediation is an increasingly popular choice for couples who want a more expedient path to final resolution.”
The Family Law issue of D Magazine is on sale and can be purchased now.