Getting a divorce isn’t always easy. The entire process can be difficult to navigate, which may make it even more complicated than it needs to be. After deciding on getting a divorce, one of the first decisions you’ll need to make is how the divorce will be overseen. There are two primary routes: litigation and mediation. Making decisions that suit your needs and priorities typically requires an understanding of the distinctions between these two strategies and knowing which one is best for your particular situation.
Let’s discuss divorce mediation and litigation, including their differences, why litigated divorce may be necessary, which approach is right for your path to divorce, and how an experienced divorce attorney can help you close this difficult chapter in your life.
Mediation vs. Litigation: Key Differences
The goal of both mediation and litigation is to resolve conflicts and reach a settlement. However, there are significant differences between the two methods of handling a divorce:
- Approach — Mediation is a collaborative problem-solving approach. Both parties are willing to communicate and cooperate to achieve the most amicable outcome. In contrast, litigation is a contested legal battle that involves formal court proceedings and is resolved by a judge. Mediation is commonly recommended when proceeding with an amicable or uncontested divorce.
- Cost — Generally speaking, divorce mediation costs less than divorce litigation. Mediation involves fewer court appearances and less discovery and the divorce mediation attorney’s time. On the other hand, litigation can be costly, particularly if it involves going to trial, involves expert witnesses, and difficulty of extensive discovery.
- Time — If litigation involves complicated issues and/or multiple hearings and trials, it can literally take years to resolve and finalize the divorce. Mediation is usually a much quicker process since there are usually no delays or court deadlines. A settlement may be reached in a matter of weeks or months with mediation.
- Confidentiality — Mediation is a private process, and both spouses can speak freely and honestly in front of the divorce mediator without fearing that their statements will be used against them in the future. Conversely, litigation is a public process, with the public being able to observe the spouses’ filings, hearings, and trials as well.
When Mediation Might Not Work
While mediation is clearly the ideal approach to divorce, it may not be the best option for both parties. So, divorce mediation is not usually recommended if one spouse refuses to be transparent about their financial situation or other relevant information. Mediation is, more than likely, off the table when dealing with such a situation.
Another reason mediation might not work is if there is a significant power imbalance in the couple’s relationship. For example, if one spouse is more domineering than the other, mediation may not be a fair option.
If a party has substance abuse or mental health issues, mediation may not work either. These conditions may impair one of the two parties’ ability to make proper decisions.
Why Litigated Divorce Is Sometimes Necessary
In some divorces, litigation is necessary. One of the most common reasons for a litigated divorce is a spouse that’s unwilling to cooperate and refuses to compromise or negotiate the terms of divorce. In some cases of contested divorce, litigation is the only way to reach a resolution.
If the spouses vehemently disagrees over prominent issues such as child custody or property division, litigation may be the only way to come to a fair resolution. A litigated divorce may also be necessary if there are complex financial issues including significant investments, business valuations, or if one of the parties is hiding assets.
Pros and Cons of Divorce Mediation
Pros of divorce mediation:
- Cost-effective — Mediation eliminates the high legal costs related to court appearances, depositions, and in-depth legal research. As such, it is usually less expensive than litigation.
- Faster resolution — Compared to the drawn-out litigation process, mediation frequently results in a quicker settlement.
- More control — You and your spouse continue to have authority over the final result, which enables more innovative and customized solutions that are tailored to your particular requirements.
Cons of divorce mediation:
- Cooperation is necessary — Both parties must be prepared to make concessions and engage in constructive dialogue in order for mediation to take place.
- Not always appropriate — Mediation might not be the best option in cases involving a large power disparity, domestic abuse, or a lack of financial transparency.
- Not legally binding right away — Until finalized, the agreement is not legally binding. Only after a judge reviews and approves the mediated agreement does it become legally binding.
Choosing the Right Path for Your Divorce
If you are getting divorced, it can be difficult to choose the right path for the process. It’s highly recommended that you work with an experienced divorce attorney who has your best interests in mind and can advise you on what steps to take.
Our team at Zelenitz, Shapiro & D’Agostino has worked in every aspect of divorce law. Whatever your situation may be, we can help you understand it, evaluate your options, review the implications, and help you fairly resolve your divorce issues.
