Divorce Mediation vs. Litigation: Choosing the Right Path

Divorce Mediation vs. Litigation: Overview

Litigation and mediation will ultimately accomplish the same goal, but they do so in very different ways. While both options are on the table, one is often significantly better than the other.

When people refer to a “messy divorce,” they usually recall their experience with divorce litigation. Litigation can go on for a long time, and every part of the process can be emotionally challenging for both involved.

In most cases, mediation will be your best option. Litigation might be the safest way to go if your divorce is rooted in unique challenges, like dangerous situations.

What Is Divorce Mediation?

Divorce mediation is an alternative to the court process. Rather than waiting out a long battle in court, you can use a process called “alternative dispute resolution” to keep your divorce behind closed doors.

If you’re in the position to complete your divorce amicably (or at least civilly), mediation can help the process move much faster. Couples can make mutual decisions and create their conclusions with the help of their mediator. The mediator acts as an impartial third party who will help the couple build their own marital settlement agreement document.

When the mediator helps both parties complete that document, the document can be filed with the court. The court will review the information. The court can issue a final divorce decree without dozens of court dates if it's complete.

Advantages of Divorce Mediation

One of the most significant advantages of divorce mediation is the difference in cost. Neither party has to hire a lawyer for mediation, and lawyer fees make up most of the cost of getting divorced. If cost is a factor for either side, mediation can make divorce feasible much sooner.

Mediation can also offer distance. There’s no reason why the couple and the mediator need to be in the same room to discuss the divorce physically. If you’d prefer to keep a healthy distance from each other, you can work virtually with a mediator from the comfort of your respective homes.

Mediation is also less logistically complicated. Remote meetings can be held whenever the couple and the mediator are available. You can work towards a resolution at your own pace. In some cases, mediation can be a straightforward process. Mediation can take a little longer if you’re dealing with complicated circumstances, like dividing a lot of property.

Disadvantages of Divorce Mediation

Mediation only works if both parties can effectively communicate and compromise. Mediation won't get you very far if one party holds its ground on a particular issue and the other party isn’t willing to yield. You’ll eventually need the assistance of lawyers, and if the situation can’t reach a reasonable conclusion, litigation will become necessary.

Mediation may not be the most effective route if serious safety or child custody concerns exist. If your divorce is subject to severe circumstances, you cannot mediate it. A litigated divorce is the only choice to protect your family.

When Is Divorce Mediation the Right Option?

Divorce mediation is likely the right option for most divorces. It places less stress on the family, empowers couples to make their own choices they feel are fair, and it’s unlikely to rack up substantial debt.

1. Prioritizing Your Family
2. You Want Greater Control Over Settlement Terms
3. Seeking Fair Terms for Both Parties
4. Saving Money and Time
5. Both Parties Willing To Be Transparent

Prioritizing Your Family

If you have children, you probably have a sense of how painful and traumatic divorce can be. Children don’t want to see their parents engaged in court arguments for months or years. They’d like to settle into a new routine where they feel safe, healthy, and protected. Mediation is a low-key resolution that will minimize how divorce impacts your children’s lives.

You Want Greater Control Over Settlement Terms

Since mediation allows couples to control their settlement terms, both parties are more likely to walk away satisfied with the conclusion of their divorce. When the court gets involved, couples have less of a say regarding how their divorce is settled.

If you and your partner have already made verbal agreements about your divorce or discussed what you would do if you ever got divorced, you may have reached some unique conclusions. If you agree to them, mediation allows you to do things your way.

Seeking Fair Terms for Both Parties

The court tends to make decisions based on concrete facts, like timing and numbers. Life isn’t always so clear-cut. With mediation, you’ll work together to decide what’s fair, even if it may be unconventional. Things don’t have to be “tit for tat,” and no one needs to walk away feeling punished or slighted. You can draw your lines as you see fit and mutually agree on what to do.

If you have a prenuptial agreement, the process is even more straightforward. Most of the work is already done.

Saving Money and Time

The amount of money and time you’ll save by choosing the mediation route will allow both parties to rebuild their lives much sooner. You won’t watch a stack of bills pile up while you’re struggling to figure out how to build a new future post-divorce. Both parties sacrifice less freedom and capital during mediation.

The average uncontested divorce is completed in about three months, nine months less than the average contested divorce. Mediation is always the best option if both parties are seeking the most time-efficient solution.

Both Parties Willing To Be Transparent

For mediation to be successful, all you need to do is be willing to communicate with each other. If you have children, you’ll need to communicate for the rest of your lives. An amicable divorce is the best way to strengthen communication and understand what your divorce means and how it will impact your family’s future.

If you’re both willing to be transparent, there’s no reason to utilize the court. The court system is only necessary when at least one partner isn’t willing to be honest and comply with what’s necessary. Everything comes out one way or another. Why not let it come out the easy way?

What Is Litigation?

A litigated divorce, also known as a contested divorce, is when one partner takes another partner to court to settle a divorce. It’s similar to a lawsuit. One party, called the petitioner, will file a complaint for divorce. The court will then become a part of the divorce process, deciding the outcome for both parties and providing them with specific instructions they must follow.

A judge will oversee the process, and both parties are typically represented by lawyers who act to advocate for their party’s best interest. This process can continue for over a year if both parties and their lawyers can’t reach a satisfactory conclusion. It can be cut short if the parties reach an agreement for an uncontested divorce, which means they’re both willing to abide by the stipulations and instructions their lawyers have provided.

Advantages of Litigation

A litigated divorce can be costly and complicated, but there are certain circumstances under which it might provide the best possible outcome. Litigation is likely your only option if your situation has become dangerous or unmanageable.

• Subpoena Power
• Court Discipline
• Children May Receive Greater Protection

Subpoena Power

Divorces aren’t always fully mutual. One party may refuse to cooperate with the other party’s request for important information. Subpoena power can prevent one party from hiding assets or financial records from the other party.

Subpoena power compels the other party to comply with information requests and to be present when their presence is needed. It can also compel one party to testify if necessary.

Court Discipline

Divorce raises a lot of emotions, and people with strong emotions can be difficult to reason with. If one party refuses to comply with the divorce process, the court can create and enforce consequences.

The offending party can be issued fees or sanctions for intentionally obfuscating the process or deliberately creating difficult circumstances. Because the court is responsible for handing out the consequences, a buffer is created between both parties.

Children May Receive Greater Protection

In cases where children may be unsafe with one of the parties involved in the divorce, it’s essential to use litigation. Children often need excellent protection in divorces involving intimate partner violence, domestic abuse, or substance abuse.

Litigation can establish firm custody boundaries, including awarding one sole parent custody if necessary. If protecting your children is your primary concern during the divorce, the only way to assure that protection is through litigation.

Disadvantages of Litigation

Litigated divorces are best reserved for circumstances when they’re necessary. They should always be treated as a last resort. You'll be met with an unnecessary mountain of challenges if you don’t have a specific need for the additional services and protections the court provides.

• Costly
• Time-Consuming
• Adversarial
• Emotionally Difficult for Parents and Children

Costly

It’s incredibly unusual for someone to represent themselves in a litigated divorce. Both parties will need lawyers, and good lawyers are costly. The longer your litigated divorce takes, the bigger your legal bill will be. Your divorce can leave you with significant debt when all is said and done.

You’re also going to incur other costs. You don’t want to bring your children with you to divorce-related matters, which means you’ll likely need to pay for childcare when meeting with your attorney and attending court. You may need to take time off work to handle your divorce, which will shrink the size of your paycheck.

Time-Consuming

Nothing moves through the court quickly. The average contested divorce takes 12 months to complete. A complicated divorce can take up to 24 months to finalize. If you go the litigation route, it could be two full years before the ordeal is over.

Consider what your time is worth. Do you want to spend two years navigating a messy divorce, or do you want to spend two years rebuilding your life and parenting your children? Do you want to miss work or sacrifice sleep in the name of your divorce? Money is a renewable resource, but time is finite. Think very carefully about how you want to spend your time.

Adversarial

Most couples seek a divorce because they aren’t getting along well. You’ll be in a series of lengthy arguments throughout your litigated divorce. This often escalates tensions rather than providing relief. If you still have to co-parent with the person you’re divorcing, the escalation of tension throughout your litigated divorce can make your relationship even more complicated.

Emotionally Difficult for Parents and Children

Divorce is often painful. During litigation, you’ll be forced to confront your divorce constantly. As much as you attempt to protect your children from adult matters, they can quickly tell when their parents are stressed out or upset. Divorce affects everyone in your family, and litigation only intensifies and prolongs those negative feelings.

When Is Litigation the Right Option?

Litigation is only the right option when there is no other choice. If one party is wildly opposed to complying with divorce, attempting to conceal important information, or is potentially harmful to any children, litigation might be your best option. In most cases, bumpy mediation is better than straightforward litigation for everyone involved.

Final Thoughts

Divorce is a trying time for everyone, even if the couple mutually agrees that divorce is the right decision and part on good terms. Litigation is rarely necessary and should only be used when it’s the only possible option. Mediation is often easier and more accessible, practically and emotionally. When feasible, try mediation first.