Divorce Litigation and Divorce Mediation: The 6 Important Pros and Cons To Make A Decisive Choice

Since you’ve come to this blog, I’m guessing that you’re grappling with a tough decision between divorce mediation and divorce litigation. It’s a difficult choice, and I’m here to help you understand each path’s differences, advantages, and potential pitfalls. Let’s dive in together and uncover the roles of divorce mediators, the court system, the costs you might face, and the real benefits of mediation in divorce cases. By the end of our chat, I hope you’ll feel more confident about what mediation involves and if it’s the right fit for your circumstances.

So, what exactly is divorce mediation?

Well, it’s a process where instead of butting heads, you work together with the help of a neutral third-party, a mediator or a divorce mediation lawyer. This person helps you and your partner reach a settlement that suits you both. This can be a great option when sorting through issues like child custody, spousal support, dividing up property, or splitting debt.

Divorce mediation is one form of uncontested divorce. You can have an uncontested divorce with a Mediator or with an attorney who represents you.

If you use divorce mediation, you will be making an agreement on how to divide the marital property, and not leave it to a judge. This means deciding yourself rather than leaving it to the equitable distribution law.

The Role of A Divorce Mediator

This person is like your guide. They’ll help you navigate the negotiations without favoring one side. Their job is to lead you both toward a mutual agreement by offering suggestions, asking the right questions, and clarifying any misunderstandings. However, it’s crucial to know they won’t make decisions for you or impose a settlement.

The Mediator is NOT your lawyer. The Mediator will not and cannot advise you on the best course of action solely for you. Instead, they will explain the law, and possible outcomes of litigation.

If you want to have a lawyer advising you on your rights, you can hire one. Many times people will hire a lawyer to assist them in the mediation process. Sometimes, they just ask the lawyer to look over the paperwork at the end.

The Cost of Divorce Mediation

One of the key advantages of divorce mediation is that it’s generally more cost effective than traditional divorce litigation. This is mainly because it usually takes less time and involves fewer trips to court. With the right level of cooperation, many couples can wrap up the mediation process within a few months.

But What if You’re Considering Divorce Litigation?

Well, unlike divorce mediation, litigation is a formal process where you and your spouse have your own attorneys in court. This process involves filing a complaint, serving divorce papers, gathering information, attending pre-trial conferences, and possibly going to trial. In this scenario, a judge will make the final call on disputed issues.

I should note that even in divorce litigation, the vast majority of cases settle before trial.

Litigation generally occurs when the parties cannot initially agree on the terms of the divorce. Most times, however, the lawyers, representing their client’s interests can broker and negotiate a deal avoiding a costly trial.

I’ve noticed that there are times when the parties say that they want to mediate but are so far from agreement, that litigation maybe the only choice. A desire to settle cannot become a settlement unless both parties agree. I’ve often had a client complaining that they can’t understand why the divorce won’t settle. The answer, which is hard to hear, is that your spouse simply does not agree.

The Role of the Courts

The court system has a significant role in divorce litigation. Judges make the final decisions and ensure the divorce process is fair. Additionally, court staff may provide resources to help you resolve disputes outside of court.

While the Judge legally cannot decide the issues of your divorce without a trial, they can be very useful in helping the parties real a settlement.

Where a party may not fully trust a mediator or believe that they have a greater entitlement than what is provided in the law, the Judge is viewed as an honest broker. Many times, I’ve seen divorces that I was sure would end in trial, but would be settled with the assistance of the judge.

Weighing the Pros and Cons of each.

So, the pros of divorce mediation are: it’s cost-effective, time-efficient, allows for flexible solutions, offers confidentiality, and gives couples more control.

But it’s not without its cons: lack of discovery can make it challenging to obtain necessary financial info, potential power imbalances could cause issues, and there’s no guaranteed outcome. This one is very important. If you think that your spouse is hiding money or assets, then mediation is NOT the right choice.

On the flip side, divorce litigation pros include formal discovery allowing for accurate financial assessments, court oversight ensuring fairness, and enforceable decisions. However, litigation can be costly, time-consuming, and adversarial.

Pros of Divorce Mediation

1. Cost-effective: Divorce mediation is cheaper than litigation.
2. Time-efficient: Mediation is faster than litigation, so you can move on sooner.
3. Flexible: You and your spouse decide how to solve the divorce, not a stranger wearing black robes.
4. Confidential: The mediation process is private and confidential. It’s no one’s business.

Cons of Divorce Mediation

1. Lack of discovery: No formal discovery process. If your spouse is hiding money or assets then you will never know.
2. Potential power imbalances: This only works if the power balance is equal. If there is domestic abuse, whether physical or mental, then mediation is a very poor choice.
3. No guaranteed outcome: Mediation doesn’t always work. Sometimes the parties are too far apart and even the best mediator can’t bring you together.

Pros of Divorce Litigation

1. Formal discovery: When you litigate you can get discovery of financial information and assets, ensuring a more accurate assessment of each party’s financial situation.
2. Court oversight: Judges provide oversight and ensure that the divorce process is fair and equitable.
3. Enforceable decisions: Court orders and decisions made by a judge during litigation are legally binding and enforceable.

Cons of Divorce Litigation

1. Costly: Divorce litigation can be expensive, with legal fees and court costs often adding up quickly.
2. Time-consuming: The litigation process can take a year or longer, depending on the complexity of the case and court backlog.
3. Adversarial: Litigation can be emotionally draining and may result in increased animosity between spouses, making co-parenting more challenging.

Conclusion

The key to choosing the right process for your divorce depends on your personal preference, financial resources, the complexity of the case, and any safety concerns. It’s crucial that you chat with a divorce mediation lawyer or family law attorney to determine which process suits your needs best.

Working with family law mediators can be very helpful. They’re trained professionals who help couples navigate the mediation process. When looking for a mediator, consider their qualifications, if you feel comfortable with them, and their fees.

And remember, you don’t have to go through this alone. If you’re considering divorce mediation or litigation, reach out to professionals who can guide and support you. Don’t hesitate to contact Port and Sava for a Free 15 Minute Consultation at (516) 352-2999. They can discuss your options and help you determine the best path for your unique situation. We’re here to help you get on with the rest of your life.