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Diane L. Danois, J.D. Headshot

The Cost Of Litigation Versus Mediation In Family Law

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Do-it-yourself divorces and pro se (representing yourself) litigants are on the rise, especially as the economy continues to put the squeeze on families financially and people simply cannot afford to hire lawyers. Remember: You didn't need a lawyer to get married, and you don't need one to get divorced.

Or perhaps you are leaning towards litigation because you believe that your opponent will be forced to pay your legal fees. Maybe your original agreement actually articulates that the party who breaches an agreement will be forced to pay the non-breaching party's attorneys' legal fees and court costs. Perhaps your attorney has even told you that your attorneys' fees will be paid for by the opposing party.

Here's the reality: Courts routinely disregard the language in these prior agreements, instead focusing solely on "need and ability to pay." If there is a need and the opposing party has an ability to pay, attorneys' fees may be awarded. What this means, however, is that additional discovery will have to be issued seeking financial information of the parties ($$$), subpoenas will be issued seeking financial and employment documentation ($$$), motions will be filed objecting to the subpoenas or for failure to timely comply ($$$$), hearings will be scheduled ($$$$$), and in the end, the legal fees have dramatically increased over arguing over attorneys' legal fees, and the underlying dispute hasn't even been addressed! This chapter of the litigation process can easily run up an additional $5,000.00. In the end, the court will typically award only partial fees, meaning that you are still responsible for the balance. Was it worth it?

The costs involved in mediating versus litigating family law disputes are dramatic. Of course, the complexities of a particular family law case must be factored into any formula, however, a typical case negotiated using an alternative dispute resolution method such as mediation may range in cost from $500.00-$3,000.00. The same family law case may cost anywhere from $15,000.00-$35,000.00+ to litigate. Consider the following:

Costs to Mediate:

Initial 2-hour consultation: $250.00 - $500.00
Follow up meeting: 4 hours at $300.00/hour, or $1,200.00
Preparation of Mediated Settlement Agreement: $500.00
Preparation of additional documents, such as Parenting Plan, Child Support Worksheet, and/or Dissolution filings (if necessary): $500.00

APPROXIMATE TOTAL COST OF MEDIATION*: $500.00-$2,500.00

Costs to Litigate:

Initial Consultation: $250.00-$500.00/hour
Retainer: $2,500.00-$5,000.00
Filing Initial Pleadings (Summons and Initial Petition): $1,200.00
Responding to Answer and/or Counter Petition: $1,000.00
Serving Discovery: $500.00
Responding to Discovery: $750.00
Preparing Financial Affidavit and Mandatory Disclosure Compliance: $1,800.00
Preparing Motions: $750.00
Preparing Motion for Attorneys' Fees: $750.00
Responding to Motions: $750.00
Hiring Experts: $2,000.00
Hearings/Court Appearances: $4,500.00
Mediation (Court-Ordered): $1,200.00
Co-Parenting Classes and Preparation of Parenting Plan: $500.00
Trial: $7,500.00-$10,000.00
Appeal: $5,000.00

APPROXIMATE TOTAL COST OF LITIGATION*: $32,700.00+

Mediation isn't a "let's hold hands and sing Kumbaya" approach to dispute resolution. However, mediation does allow the parties to control their own destiny and consider their unique issues to find a resolution that is mutually agreeable by the parties -- at a reasonable cost. The sheer volume of family law disputes clogging the court systems, in contrast, forces a tendency to approach these cases in a "cookie cutter" fashion, often resulting in resolutions not particularly agreeable to either party -- at an expensive and unreasonable cost.

*These are approximations and are contingent upon complexities of each individual case and time involved with the parties.