Should you litigate or mediate?

Different ways to divorce

Just as there are different types of divorce, there are also different ways to divorce. The two main ways are litigation and mediation.

Litigated divorce requires both parties to hire divorce lawyers who will prepare the legal paperwork that needs to be processed by the court before the trial, and who will represent them in the court proceedings.  The goal of each attorney is to get the best deal for his or her client.  By nature, this sets up an adversarial situation.

Mediated divorce involves both parties and a neutral mediator meeting together to discuss the issues and work on conflict resolution.  Mediation takes place outside of court, but all agreements signed by both parties become court orders and have the same binding effect as decisions made in a litigated divorce.

Comparing litigation to mediation

The way you choose to divorce will have a profound effect on many aspects of the divorce process and results.  Some of these are:

Control over decisions

• Litigation: The judge rules on the issues in dispute.
• Mediation: You and your spouse decide on the resolutions.

Pace

• Litigation: The time it takes for litigated divorce proceedings depends on the schedules of the attorneys and the court.  It usually is a long, drawn-out process.
• Mediation: You schedule mediation at your own convenience, and you decide how fast or slow you want to take it.

Flexibility

• Litigation: The court determines the terms of child custody, and any changes will require a return to court.
• Mediation: You and your spouse choose how you will handle custody and visitation.  You can try out different arrangements and modify them without having to go to court.

Privacy

• Litigation: Your personal financial information becomes public record.  Details of the case from the filed declarations (including accusations you and your spouse make against each other) also become public records available for viewing by anyone.
• Mediation: There are no filed declarations.  Mediation is confidential and takes place in a private conference room.

Fairness

• Litigation: Your divorce settlement may be affected by the aggressiveness of your lawyer compared to the opposing lawyer, the mood of the judge, and other factors out of your control.
• Mediation: With the help of the mediator, you and your spouse can negotiate a settlement that is fair to both sides.  The two of you are in control of the outcome.

Compliance

• Litigation: The lack of control and participation felt by one or both spouses may result in feelings of not being committed to comply with the court’s decisions.
• Mediation: When both spouses are involved in making the decisions, they are more likely to comply with the plans.

Costs

• Litigation: Very expensive
• Mediation: Much less expensive

Effect on the children

• Litigation: If child custody is an unresolved issue, the family (including the children) may have to undergo invasive psychological evaluations.  In addition, the arguments and accusations brought up in court will take a detrimental emotional toll on the kids.
• Mediation: The children can be protected from intrusive and emotionally upsetting proceedings.

Emotional impact

• Litigation: Emotionally draining. The nature of the court proceedings can bring out feelings of hostility, self-doubt, bitterness, and resentment.
• Mediation: Dignity and peace.  Working with your spouse for the good of each other and the children can produce feelings of competency, integrity, and doing the right thing.

Will mediation work for you?

To be successful, mediation requires open communication and a willingness on the part of each spouse to be reasonable.  Ask yourself these questions –

• Do we agree on the major issues?
• Do we feel we can work out the minor issues with a little help from a neutral third party?
• Do we agree to put these decisions in writing, and agree to comply in good faith?
• Are we both willing to put the best interests of the children first?
• Are we both willing to be fair towards each other?

If you answered yes to all these questions, a successful mediated divorce can be yours.  This option will offer you a less stressful, less expensive, quicker, and more collaborative settlement.

To learn more about your divorce options, get divorce support, or find a mediator, contact your local Divorce With Dignity office.