Divorce Mediation vs. Divorce Litigation | Jocelyn M. Russo

No two marriages are the same, and for that reason no two divorces should be treated the same. Consequently, there’s no perfect method to resolving a divorce, but if you’re a spouse contemplating a divorce you should be aware that there are several different options you may choose.

Regardless of how many options one may have, when most individuals think about any type of legal issue they picture a courtroom with attorneys advocating for each side and a judge issuing orders in the middle. However, it’s important to understand the difference between the options one may have, particularly the difference between mediation and litigation, because in the end picking the right method for you and your particular case could help you both financially and emotionally.

Mediation

There are ways to resolve divorce disputes that may, in certain cases, be superior to court.  In divorce mediation, a divorcing couple works with a neutral mediator who will help both parties come to an agreement on all aspects of their divorce.  The mediators must be neutral and may not advocate for either party.

Divorce mediation generally starts with an introductory meeting between the spouses and the mediator to discuss the goals of the parties and define the outstanding issues to be resolved. The mediator then schedules subsequent appointments to meet with both parties to obtain information and to create a plan to ensure that all options available to the parties are considered.

Further, in mediation, the interested parties make all the decisions regarding their divorce, with the mediators guiding and assisting when needed. Mediation is a confidential process wherein the decisions of the parties are made in a private room.  Therefore, there are no filed declarations in which one party may make accusations against the other, and for that reason, both parties typically maintain their good reputations.

Moreover, in mediation, agreements may be changed by the parties without a court hearing.  Generally, when there are children involved, parties can try out different parenting plans to determine which works best for their particular family. If the parties determine their parenting plan will need to be changed, they can meet with their mediator to discuss the same. They do not have to appear in front of a judge and argue one way or another.

As mentioned, mediators must act as a neutral body and cannot offer legal advice to one particular party. For that reason, some mediating spouses find it particularly helpful to work with a consulting attorney who can offer legal advice and review the settlement agreement before it is signed. By engaging in mediation while having a consulting attorney, you are ensuring a collaborative method all while instilling that you are receiving the best outcome for your particular situation.

The cost of mediation is considerably less than the amount typically spent on litigation and in a successful mediation, the parties resolve all divorce and custody issues and sign a written agreement without ever stepping foot in court.

However, should the parties decide to attend mediation and are ultimately unable to come up with an agreement, the parties will likely be re-routed to divorce litigation and will have work out their particular divorce issues in a public court setting.

Litigation

For some couples, negotiating directly with each other, even with the help of a mediator, is not possible – either because of problems in the relationship (such as domestic violence or substance abuse) or because a spouse is unwilling to mediate. If anger or resentment has made it difficult for you to discuss matters in a calm and cooperative fashion, the mediation process may not be the best process for your particular situation. Rather, you may consider divorce litigation.

Unlike a mediator, in divorce litigation, the lawyer’s role is to advocate for the one spouse that hired them with the goal of achieving the most favorable outcome for their client.  An attorney hired by one spouse cannot provide the other party with legal advice and owes a duty of loyalty and diligence solely to the client.

Many divorce attorneys genuinely seek out a resolution that is in the best interest of their clients and work hard to achieve optimal ends.  However, litigation can be very costly in certain matters if there are many issues left unsettled and many assets to divide. Unlike in mediation, litigated divorce orders or judgments often require court involvement if either party wants to change the order or judgment.  Each time an attorney is required to appear in court, costs are driven up.

It’s important to note that even if the parties do not choose to engage in mediation and rather each hire a lawyer to represent their respective positions, the case does not, and likely should not, proceed to trial.  Many cases, with or without a mediator, can be settled in a timely fashion with both parties’ cooperation.

With court system backlog on the high, parties are encouraged to settle their matter – whether that be through a mediation process or through their respective attorneys.  Constant fighting and the inability to compromise will only add to the already expensive costs of divorce.

If you are not sure whether meditation or litigation is a better option for you, contact the experienced attorneys at Bremer Whyte Brown & O’Meara. At Bremer Whyte Brown & O’Meara our family law attorneys are trained as both mediators and independent legal counselors. For that reason, we are able to work with you in crafting the best plan for your specific situation.

 

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