Electing Mediation Instead of Court

Jeffrey P. Weinstein

The public may perceive quality divorce lawyers as those willing to fight it out in court over every single issue. But many successful matrimonial attorneys believe court should be the last resort because it drags out cases that could be resolved more efficiently through other means including mediation—or even the old-fashioned route of the parties sitting down and negotiating a deal.

Experienced matrimonial lawyers, who’ve seen the often-tragic result of drawn-out divorces, are among the loudest proponents of negotiated settlements. Jeffrey P. Weinstein, who over the past 30 years has developed a reputation as one of New Jersey’s most successful family law attorneys, is in this group. He believes litigation is usually the worst way to end a marriage.That’s why he and many of his colleagues in the divorce bar try to counsel their clients toput emotions aside and work through a divorce as amicably as possible.

“I like to fight as much as anyone, but I also know when not to fight—and when I have to fight,” says Weinstein, of Roseland’s Weinstein Snyder Lindemann Sarno.

Battling in a courtroom takes a terrible toll emotionally on clients, and is often financially devastating. Attorneys’ fees in a litigated divorce can run anywhere from $10,000 to $25,000 per person, or even as much as $100,000, depending on the complexity of the issues involved and how long the case drags out. When the parties agree to try to work things out—which oftenmeans hiring a neutral mediator, perhaps in addition to attorneys—that cost can be dramatically reduced, by half or more.

When parties give up power over their cases to courts, they often end up with results that no one is happy with. Courts really aren’t equipped to resolve disputes involving family matters, many lawyers believe, because litigation is a very blunt tool not suited to these types of cases. Mediation and other forms of alternative dispute resolution (ADR) are one of the fastest-growing fields in the law, including in the area of divorce. Many law schools have added courses on ADR in recent years due to the demand from students and the public. Many judges, lawyers, clients and others believe that avoiding court is a more humane and efficient way to handle manytypes of disputes, including those involving the end of a marriage.

“I like to fight as much as anyone but I also know when not to fight—and when I have to fight.”

Whenever possible, Weinstein prefers others methods of resolving these disputes, including mediation and arbitration, which he calls “really good alternatives.” He advises the best approach is something that may surprise anyone who thinks a good divorce lawyer must be a barracuda.

“The best alternative is to sit down over lunch with your adversary,” he says. “I find that works” in resolving divorces efficiently and to the benefit of his clients. In large part, he’s successful with this approach because other divorce lawyers trust him. “If you have a good reputation and you earned it, you’re able to accomplish things a lot more—and much more quickly—than if you’re just looking to earn your stripes and beat Billy the Kid in a gun draw.”

It’s not that Weinstein is afraid to litigate. To the contrary, he’s been in countless courtroom battles, winning more often than not, and winning big. But the cost to the clients, especially when children are involved, isn’t worth it if things can be worked out without resort to court, he says. “I can say something to an adversary which I hope they can accept as being true, and there areadversaries where I can accept what they say is true, and we can cut through a lot of the junk that way,” he says. “I’m afraid that’s [a method that is] underutilized.”

Weinstein, who has made his mark many times in New Jersey matrimonial law including being the first attorney to obtain alimony for a man, disagrees that today’s legal climate prevents opposing attorneys from working together to fashion a fair and equitable divorce settlement.“People like to say that in the old days, people could talk things out better than now because there was more camaraderie,” he says. “I disagree.” The problem isn’t that lawyers are less collegial today, he says, “but that they don’t take the time to reach out to opponents, in large part because they are so busy. It’s a mistake to head right into court without attempting to work outa deal. I think people don’t have time to talk things out—as adversaries—and you really have to make time to do it,” he says.

Otherwise, a divorce will drag out, legal fees will soar, and the parties are bruised emotionally and in the pocket book. Still, he notes, it’s often the clients who drive attorneys to go for blood.

“It’s very hard for people” to be decent when they are in the middle of a divorce, he says. “Sometimes lawyers get too caught up in their client’s positions and become too much of an advocate and not a conciliator. I’m not saying it’s not important to be an advocate—it is. It’s more important to know when a deal should be struck and how it should be struck.”

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Electing Mediation Instead of Court