by Philip Be'er
By the time my divorce settled, three years had passed since the litigation was first initiated. I’d wasted 20,000 precious dollars securing my young daughter’s right to have both parents equally involved in her life. It took years for me to recover financially, and even then, I felt trapped in a situation where I was paying child-support to an ex whose income had eclipsed mine and I couldn’t afford to go back to court to have the amounts adjusted.
Sharing my story with colleagues, recently, I was shocked to learn that $20,000 was considered a bargain relative to what they had spent to arrive at agreements. At least one of my co-workers had invested more than $100,000 for their share of legal fees and other expenses.
A typical price range for Divorce Mediation, in Canada, in 2023, would be around $1,500 - $7,000 per party, depending on complexity.
Let’s take a look at some reasons why mediation tends to cost so much less than litigation.
When you choose to litigation over mediation, hourly legal fees charged by a lawyer tend to be higher than hourly fees charged by a mediator.
The difference could be as small as $50 per hour, but don’t be surprised by much larger differences.
A litigator is compensated for competing, on behalf of their client and for winning a settlement favourable to their client, and often, to the detriment of the opposing party.
Litigators are not required to ensure fairness, balance of power, or an equitable outcome and this sets the stage, quite often, for future conflicts, particularly in divorce cases involving younger children and infants.
The mediator’s mandate is to facilitate a process that can lead to a high-quality decision, without favoring one party over the other.
How can the involvement of a team of specialists, when needed (accountants, mortgage brokers, realtors, insurance providers, evaluators, tax experts, business analysts), get you to a durable agreement more rapidly and more affordably?
Prior to my work as a mediator, I worked in trauma-informed counselling and conflict resolution – I bring these areas of expertise into my mediation. Other mediators have had careers in childcare, real estate management and law enforcement. Some have worked, or continue to work, as lawyers, paralegals and clerks in the court system. Their mediation styles and techniques tend to be informed by what they have learned and experienced in these other careers.
When, for example, a divorcing couple shares their financial information with me, (in complex cases) I get their written permission, to pass this information onto an accountant, or another specialist with more knowledge and experience calculating the financials. Our discussions about spousal support and asset division are based on the information received from these specialists’ analyses and from the list of scenarios and repercussions that they provide.
When issues requiring complex legal expertise arise, I bring in a specialist who can advise the parties on their options and their obligations. This can be helpful in cases, for example, where a divorcing couple own properties in jurisdictions outside of Canada, or when the parties are living in separate provinces or have complex commitments to children and spouses from previous unions.
Most of the specialists that I work with understand how the information they’re providing fits into the mediation process, and this allows their reports can be more focused and directed. The less time that it takes them to generate recommendations and analysis, the less you, generally, end up paying for their expertise.
Using the court system can be very expensive and time consuming. You’re forced to respond to any motions that the other party initiates and this usually forces you to pay a lawyer or a paralegal to respond intelligibly within the court’s timeline; you’re paying fees to submit some of your responses; paying for orders; and needing to take time away from work to fit in with the court and your lawyer’s schedules.
If the judge only manages to settle 2 out of 4 issues, that forces you back to court, a few months later, to resolve the outstanding issues. If the judge delivers a bad ruling, as so often happens, you can find yourself appealing the ruling, at your own expense, or being forced to pay the other party an unfair excess until the order gets revised.
Almost every time that the opposing party submits a fresh motion, you are forced to respond to their motion and the cost of doing so is borne by you.
In mediation, you’re unlikely to incur the majority of these costs: you’re paying for your mediator’s time, for input from specialists, and if lawyers are involved, for the limited time required of them to support you in the mediation process. When you arrive at an agreement, you may need to pay for a lawyer to review the agreement and make suggestions, but this does not usually require an inordinate amount of time.
There are still costs involved with submitting your order so that it can be registered, so keep these in mind.
You may resolve 2 out of 4 issues using mediation, and need to litigate the unresolved issues. When this is necessary, you’re still likely to be better off having resolved two of the issues in mediation.