Introduction

Divorce is one of the most complicated and emotionally exhausting processes a person can experience. Not only do you have the added stress of the dissolution of your marriage but you also have the questions of finances, child support, property and assets, and so on. At this time you can choose how to go through your divorce process; through mediation or litigation. Each has its strengths and weaknesses, but how do you decide which to use when?

In this article however, we will explore in more detail divorce mediation versus litigation. We will describe the work of each process, discuss the major differences between both, and offer our recommendations which of them can be useful for you and beneficial in your case. In this way, knowing these two fundamentally different strategies will help you select the best course of action for your divorce.

What is Divorce Mediation?

Divorce mediation is a form of resolving disputes where instead of a judge or a panel of judges, the couple sits with a neutral third party known as the mediator to sort out the details of dissolution of marriage. Mediation seeks to assist the couple to sort out where they shall split the properties and liabilities, child issues like, custody and maintenance among others without necessarily going to court.

Mediation is the process where the couple negotiates with the help of a mediator, which is a third party. It is important to note that mediators are not decision-makers; they only help in creating a platform for the negotiation of a solution. It is the best when both you and your ex-spouse come to the consensus regarding all aspects of the divorce. Any agreements made during mediation are documented in a document called the Marital Settlement Agreement. It only transforms into a legal document when a judge signs it along with your divorce papers.

Mediation can be done in several sessions that can take a few weeks to a few months in total. It is possible to go for mediation alone, but most professionals recommend that you be accompanied by a divorce attorney. The lawyer can then advise on matters of law to ensure that your rights and best interests are fully upheld during the bargaining process.

Advantages of Divorce Mediation

• They are, in most cases, less costly than litigation.
• Enables you and your spouse to develop individualized arrangements
• Yields greater control over the results
• Maintains friendly relations that can help in sharing responsibilities of raising the child later.
• It can be considerably less time consuming than be court

When is Mediation Appropriate?

Mediation is most effective with couples who have the willingness to some extent to compromise and negotiate. It is not suitable for cases of marital disputes, where one partner is abusive to the other or when there is a clear power imbalance. As long as you and your spouse can communicate effectively, mediation provides a mutually empowering way to end your marriage based on choice. This can inform the future relationship between the two of them which is particularly important if there are children involved.

What is Divorce Litigation?

Litigation means a divorce advice process that is carried out in the court. A litigated divorce occurs when couples cannot come to an agreement on some or all aspects of their divorce, such as division of property or spousal support. Thus, they are forced to seek the assistance of attorneys and judges to settle matters and decide on the division of property in case of a divorce.

The process of litigation starts with the filing of the divorce papers, which is done by lawyers for each of the spouses. It is then submitted to the other attorney with information concerning the financial status, assets, and debts as well as any other issues that are likely to be in more detail to the other attorney. They will spend weeks or months researching possible legal jobs, looking for proof for their cases, attending preliminary hearings and trials, and so on. If agreements cannot be reached out of court, issues get argued before a judge at trial. The judge then makes final decisions on any contested issues pertaining to divorce.

Fact Sheet on Divorce Litigation

• Closely related to mediation but often takes much more time to be completed
• Can be very costly with attorney’s fees, expert expenses, etc.
• It gives you less control because the judge has the final word on most of the matters.
• Far more combative than mediation – often engages lawyers on either side of a lawsuit
• Can harm possibilities of civil behavior for ex-spouses after the dissolution of marriage

When Might Litigation Be Necessary?

If you and your spouse cannot agree on important issues, you will probably have to go to trial for your divorce. Domestic violence scenarios also usually call for legal action, because trying to mediate such a case would not be right. Litigation becomes essential when:

• Your spouse is unable to bargain and compromise
• It is undertaken when there are complications in the law or in the business stakes.
• Larger disagreements are apparent on high-value items or accounts.
• Child custody involves court order because of issues such as abuse.

In general – the more you and your soon to be ex-spouse are ready to sit down and discuss how to divide up in the divorce the more likely you are to benefit from mediation. However, if cooperation is not possible, then litigation is necessary to solve the problem as fairly and legally as possible in court.

Distinctions between Mediation and Litigation

Now that you understand the basics of mediation and litigation for divorce, let’s compare some of the critical differences between the two options:Now that you understand the basics of mediation and litigation for divorce, let’s compare some of the critical differences between the two options:

Degree of Control

Through mediation, you get an opportunity to participate in the discussions and even influence the drafting of provisions of the settlement. It is rooted in what you and your spouse deem reasonable or right for the two of you. Litigation makes you somewhat dependent on your lawyers and the courts since a judge is the final arbiter in a case.

Cooperativeness

Mediation entails each spouse’s agreement to engage in direct communication with the other at the bargaining table. By its very nature, litigation means that there is an inability of the spouses to handle disputes without the assistance of lawyers and judges.

Cost

In most cases, professional mediators are usually paid $200 to $400 for each hour they work. Litigation will always be higher by tens of thousands of dollars with costs from attorney’s fees, depositions, expert witness fees, trial expenses, etc. The litigated divorce is at an average of $15,000 to $30,000.

Duration

The mediated divorce settlements often last 5-10 sessions and can take 2-6 months, on average. Litigated divorces can easily go to a year or more just to sit in front of a judge to get the final judgement on the same.

Civility During Process

Mediation aims at promoting rational communication that is also civil. Litigation is highly destructive to civility between couples since it results in legal battles through lawyers. This can sever the possibility of friendly working relationships after the divorce.

Emotional Impact

Divorce mediation is laborious and emotionally taxing because you primarily confront the issues of the divorce with your former spouse. However, litigation is even more detrimental with protracted adversarial legal battle.

Future Co-Parenting Relations

Mediation is much more conducive to the kind of positive communication necessary for co-parenting after a divorce, which is necessary when there are children involved. The confrontational process of litigation detoriates the probability of future cooperation.

Insights on Deciding between Mediation and Litigation

If after weighing the core differences between divorce mediation and litigation you still feel stuck deciding which option better meets your needs, consider this professional advice:If after weighing the core differences between divorce mediation and litigation you still feel stuck deciding which option better meets your needs, consider this professional advice:

”It is wise to seek mediation first in cases involving children or where there are expectations of dealing with the other spouse in the future because courtesy and courtesy is highly valued,” said family lawyer Jane Smith. “However, where large stakes or legal questions in any form are present, having an attorney on board right from the start guarantees that you are not making potentially costly legal mistakes compromising your rights.”

John Adams, a professional mediator, recommends asking yourself the following: ”To what extent are you and your spouse ready to disclose details and negotiate? Can one or both of you put aside emotions over ending a marriage and engage in rational conversations? If the answer to either is no, do not mediate; retain lawyers and proceed to litigation.”

Last of all, as pointed out by judge Patricia Roberts: “In the present day court system, judges actively recommend mediation for suitable divorces because it makes the couple responsible for creating their own solutions first through negotiation rather than our having to impose directions on families unwillingly by the court.”

In Closing

Divorce mediation and litigation are both ways that you can use to end your marriage. However, these two options are vastly different in terms of what they involve and the circumstances under which they may be advised by specialists. With this new knowledge, you are now in a better position to identify which process you should follow depending on your divorce situation.

I wish you well, and the fortitude as you progress in handling your matters of marital dissolution. Stay as vigilant as you have been regarding your rights and the future safety of yourself and your children; at the same time, never fail to look for the light at the end of the tunnel and strive to seek any opportunity for the creation of positive compromise – this will not only benefit all the parties involved in the divorce, particularly your kids, in the present but also in the better tomorrow that awaits them after the divorce.