Senior Divorce: Using Mediation as an Early Intervention

Divorce is never easy, no matter when it occurs in one’s life. But when senior couples divorce, there are many additional considerations that arise from having a long history of a shared life together. Unlike divorces which occur decades earlier that deal with issues such as child custody and visitation rights, senior divorces must take into account retirement and estate planning, asset protection, Social Security and Medicaid benefits and more. These special legal issues are particularly suited to mediation.

Financial Costs of Divorce

A divorce mediator I know asks his clients who request litigation services instead of mediation services: “Whose college education do you want to pay for, my kids or yours?” I have passed this question on to many of my own clients because I have seen how expensive litigation can be.

The Wall Street Journal recently reported the average cost of a fully litigated contested divorce is $78,000 while the average cost of a mediated divorce is less than $7,000.¹ With an average savings of at least $70,000, I can’t imagine why anyone would choose a court fight over a mediated settlement.

Emotional Costs of Divorce Litigation

But there is more than just the financial cost of a contested divorce. There is a heavy emotional toll on everyone involved when important issues like grandparent visitation, spousal support, the family home, businesses, retirement accounts and medical benefits are fought over and remain unresolved. I have seen the increased bitterness and resentment that results from spouses taking hard positions in court, using the children as pawns in the parents’ high stakes emotional and legal battles, and from the case taking months and years to resolve in court.

All of this gets piled on top of the emotional difficulty already surrounding the end of the relationship. However, many divorcing couples have discovered a more civilized, less stressful and less costly option with divorce mediation. These couples have discovered how much easier the process is to navigate with a mediator and how much better the outcome can be for everyone, including the children and grandchildren.

Benefits of Divorce Mediation as Early Intervention

In order to make the most of the cost and time savings afforded by divorce mediation, it is best to start the case in mediation. Before any paperwork is filed with the court and before attorneys are retained, the couple can find their mediator and start the divorce process in the privacy of the mediator’s office. This alleviates the need for the couple to pay separate attorneys’ retainers ($5,000–$20,000 each) and also avoids the couple getting pitted against each other early in the process if they go to the wrong attorney.

This early intervention of utilizing the mediator as a guide through the entire process is less costly in part because the mediator is doing most of the work for both parties and leaving only the consultation and reviewing work to the outside attorneys. This helps to reduce the total expenses paid by the couple by reducing the back and forth (often hostile and adversarial) negotiations and disagreements in revised versions of the agreement. Through the mediation process, the mediator is able to produce a settlement agreement that reflects the interests of both parties instead of having it tailored for one spouse by his attorney and then the other spouse’s attorney changing it all around, and then back and forth, with legal bills increasing by the minute.

Although I am by no means a psychotherapist, as a mediator, I help couples communicate in a productive manner with each other and sometimes through me. At times this means keeping the parties calm and other times means letting them express their emotions in order to facilitate a productive conversation. Such productive conversations are more likely to occur when the couple has worked together in mediation from the outset instead of having fought for many months as enemies in court before sitting down in mediation to find solutions together.

Mediation is designed to reduce the hostility between divorcing parties and to minimize adversarial positions which are all but required in contested litigation. It can be challenging to overcome the hard positions taken in court when everyone is sitting around the mediation table in the aftermath of brutal litigation. To reap the full benefits of divorce mediation, the earlier mediation is started, the better. However, even if litigation has already been started, mediation is still an option to help the parties reach agreements. In a future column, I will discuss the ways in which mediation can help in divorce proceedings as a late intervention in these situations.

Posted in Family Law & Mediation