Here’s An Actual Case I Litigated, Which I Guided Toward Mediation In The Middle Of Litigation

My wife referred a client to me, after the client’s third attorney was “looking to sell her out” at a four way meeting two years into the matrimonial litigation. This client’s child has a pervasive physical disorder, which required him to spend approximately 1 ½ years of his 7 years hospitalized. But for medicaid, the medical bills would have been well in excess of 1.5 million dollars that was paid to the various medical care providers.

I met with the client, felt horrible for her situation, and advised her that I thought her case probably would yield maintenance to her somewhere between five and ten years. (She had a seven year marriage prior to the summons being filed. Under the current law, she would likely get between 2 and 4 years).

Her then current attorney, was pushing two years of maintenance, and stating to her that she is lucky that she is even getting two years.

The thirteen factors making up the payment of maintenance contains one which allows judicial discretion. In her case, it was obvious that the straight formula wasn’t going to be applied, since my client (who is a registered nurse), requires time away from her child (picked up by the visiting father) to enable her to work, maintenance had to be tied to the child’s needs, and her constant and vigorous treatment as a registered nurse that is required on a daily basis.

The client decided to hire me, and paid me a modest retainer, considering the stage at which I picked up this file, and further considering that it was likely that this case was going to go to trial.

And go to trial we did. The trial started with half days, and miraculously, because of the relationship that the child’s primary care physician had with both the child and my client, the doctor voluntarily agreed to come to court to testify. His testimony occupied both a morning and an afternoon.

It was obvious, with tears in the court personnel’s eyes, that this child had some very serious health issues and my client was required to be the full time caretaker of this child thereby impinging on her time to work.

Then, my client took the witness stand, and had testified for approximately three days. At issue, was the amount of maintenance, and the length of time the Wife was to receive it. The court was divided in their suggestion to my adversary and myself, with the law secretary believing that lifetime maintenance was necessary, and the judge suggesting four years.

However, my adversary would not budge beyond three years, and I believed that eight years was the proper amount. So there we were at a standstill, ready to resume trial. Then, since it was only a bench trial, summer came, and the month of July and August came and went, with the trial scheduled to resume on the last day of August.

The morning of trial, I had to appear before another judge, and while waiting to go in to my court conference, I saw a friend of mine whom I presented with on a panel for a CLE given to the Suffolk County Bar Association about mediation. Sally Struthers is a long term practicing attorney in matrimonial law, and a skilled and knowledgeable mediator. I asked Sally that morning whether or not she would be willing to come down to my trial, voluntarily, in an attempt to see whether or not in one hour she could meet with these people and possibly help them craft a settlement. We had a working stipulation of settlement that was circulated, along with my letter back to my adversary consisting of 12 or 13 points which had to be modified, but we were at a standstill.

It was 11:30 in the morning before the Court was ready to resume our case. I implored my adversary, the parties, and the judge, to entertain one last effort to get this case settled, because without having agreed to just about anything else, the testimony was going to go on for another four or five days.

Reluctantly, the court allowed the parties to sit with Sally, and Sally did her thing. They met up in the library on the fourth floor of the Supreme Court in Central Islip, and 3:15 pm that afternoon, a signed stipulation was entered into in open court, the parties allocated, and the case finished. My adversary and I both agreed that we would pay Sally her fee out of our legal fees when the marital residence closed a month from now.

How did this happen? It happened as a result of everything I believe so passionately about. That with mediation, you get a certain and determined end and with litigation you never know what you are going to get. My experience after 35 years in the business is that all couples going through a matrimonial dissolution should first attempt mediation before going to court to litigate. I do not see any downside and only beneficial things.

At worst, the parties mediation will not work, and they will find themselves in front of a judge, just like the clients walking out of court shaking their heads wondering how they ever got to each owing their attorneys in excess of $50,000.