If you are considering filing for divorce, you may already understand the amount of decision-making that comes with it. You and your estranged spouse must come to an agreement on how you will handle things like dividing assets, calculating child support, and more. Creating a divorce agreement that is mutually beneficial can be difficult-and can sometimes even get hostile. As a result, many couples decide to work with a divorce mediator to facilitate their settlement discussions.
Read on to learn how divorce mediation differs from divorce litigation, so you can then make an informed decision about what’s best for your family.
What Is Divorce Mediation?
Divorce mediation is a method of deciding on divorce terms without court intervention. A couple works with a mediator to discuss financial and family matters in a safe, private environment. This is a great option for couples who are on the same page with their marriage ending and can cooperatively create a resolution together.
What Is Divorce Litigation?
A litigated divorce is suited for couples that may not be able to come to divorce terms together in an amicable manner. In this case, the couple will proceed to trial in what is considered a “contested” divorce unless a settlement can be reached before the trial date. One spouse (the plaintiff) will file a divorce complaint, asking the court to intervene and adjudicate the terms to end the marriage.
The judge will be the final decision-maker with matters like the division of assets, child custody and support, alimony, and a number of other concerns.
Divorce Mediation vs. Litigation: Which Is Best for Us?
Divorce litigation and mediation both result in the termination of a divorce, but they differ in how important decisions are made. How does divorce mediation differ from litigation? Divorce litigation requires contested court proceedings. Mediation, on the other hand, leaves it up to the couple, with the assistance of an unbiased third party, to decide on divorce terms. The route you choose should depend on the level of cooperation you can get from your spouse.
While occasionally people may opt to represent themselves in divorce court, most decide to hire attorneys to provide guidance, argue on their behalf, and help them navigate through the trial. These litigation fees usually cost tens of thousands dollars and can exceed $100,000 per spouse, depending on the complexity and conflict level of your case.
Divorce mediation can save you lots of money. Mediation services typically cost around $3,000-6,000, which many couples decide to split.
When you choose to litigate your divorce, the power of making big decisions in your case lies in the judge’s hands. This means the outcome can often be uncertain for families.
Mediation puts the decision-making in the couple’s hands. This means you must have some level of mutual understanding and respectful communication skills. You’ll work with a third-party mediator who is unbiased, and they’ll guide you through the conversations necessary for coming to an agreement.
With litigation, the timeline is not in your control; and the divorce will end upon the trial date set by the court, unless you are able to settle your case earlier. In some cases, a litigated divorce can take up to a year or more, depending on the availability of each spouse and the court itself to schedule proceedings.
Divorce mediation, on the other hand, usually takes 2-3 sessions over a few weeks and occasionally requires only 1 session. The timeline for mediation depends on the complexity of your case, the amount of time between each session, and your level of cooperation in deciding what is fair and reasonable.
Because the litigation process can be extremely adversarial and take a long time, it can take a strong emotional toll on you and your estranged spouse-and sometimes the entire family.
Mediation, however, occurs in a non-adversarial setting. It allows you to make decisions in a less formal environment, and it puts the control back in your hands.
Considering the Children
Divorce litigation means the judge will make the final decision about many concerns, including your children’s custody. Unfortunately, this judge will most likely be a stranger to your family’s everyday dynamics.
For your children’s protection and wellbeing, mediation is a good option, as it gives you and your estranged spouse the chance to do what you believe is best for your kids.
Protection of Private Information
If you go to trial for a divorce, personal details about your case become available via public record. These public records are available for anyone to view.
Mediation is done in a private, confidential environment. The legal decisions can be made between the two of you and a mediator, which means the emotional conversations you have will stay private.
Litigating a divorce through family law requires a formal discovery process, in which each party will present their assets, debt, and more. With mediation, there is no formal discovery, which can save you time and unnecessary stress.
Finality of the Agreement
Both litigation and mediation will result in the termination of a marriage. An uncontested, mediated divorce is often a less emotionally-taxing way to get it done, but both methods will require a judge to finalize the divorce. In mediation, this occurs when a judge signs a final order of divorce which incorporates the marital settlement agreement the mediator drafts and the spouses sign. The judge signs the final order at the end of a four-step court process.
FAQs about Divorce Mediation and Litigation
Who should consider divorce mediation?
You should consider divorce mediation if you and your estranged spouse prefer to communicate with each other to come up with a divorce agreement over going to court. You can avoid spending large sums of money on attorney fees, as long as you can be cooperative and are willing to work together.
Should you mediate or litigate?
If your case is high conflict, litigation may be your only option. You should also consider filing a complaint for a contested divorce with the court if:
- You consider your spouse an unfit parent
- Your spouse is violent or abusive
- Your spouse has kept assets of theirs a secret from you
- Your spouse has pressured you to agree with unfair divorce terms
What does successful divorce mediation look like?
Mediation is a form of alternative dispute resolution. If nothing else, its goal is to produce a divorce agreement without having to go through a lengthy trial or an emotional battle.
What is the role of a divorce mediator?
A mediator is not responsible for making the decisions for the divorcing couple. They are instead a guide who helps them reach the goal of creating a settlement with which both parties can live. They’ll be nonconfrontational as they work to understand the couple’s concerns, know when to intervene, and ask the right questions to come up with solutions.