Facing a divorce can seem overwhelming, particularly when making a multitude of decisions concerning your divorce terms. Traditionally, couples would resolve their divorce in court and go through lengthy litigation. However, today, you have alternatives, with mediation being one of the most popular and easy options.
In this article, we’ll explore the distinctions between divorce litigation and mediation that will help you choose the best route for yourself and your family.
Let’s dive in.
Divorce mediation is one of the methods of alternative dispute resolution (ADR) that helps spouses resolve disputes related to their divorce. It is not a type of divorce but rather a way to agree on all issues and avoid a court battle.
The mediation process involves discussions between the spouses led by a neutral third party – a mediator. They are trained professionals helping couples settle on property division, child custody, spousal support, etc.
A mediator cannot give legal advice or make decisions for the spouses. Instead, they offer different solutions and options from which to choose. Then, the spouses pick an option that suits them best.
Starting a mediation process doesn’t require filing for divorce first. On the contrary, you and your spouse may begin negotiations before you go to court. This way, you will have more time to resolve your differences and draft a settlement agreement without the pressure from the ongoing divorce.
Litigation or a litigated divorce is when spouses can’t agree on divorce terms and must ask the court to grant the divorce and make all accompanying decisions.
The couples may file a divorce complaint with the court and go through the legal process, which could include several court hearings before a judge. Divorce Litigation usually requires each spouse to hire an attorney to represent them in the divorce case. The lawyers protect their clients’ rights.
Although the parties can negotiate a settlement agreement at any time during the divorce process, sometimes the level of conflict prevents agreement on critical issues. So, after a series of hearings, the court decides critical matters, like child custody, property division, and alimony.
A litigated divorce may take one or even a few years to finalize and typically includes a trial where the judge hears both sides and witnesses. The time required to schedule the hearings and the court congestion also contributes to the lengthy duration of litigated divorces.
Although litigation is usually costly and slow, it may be the only solution for some couples. For example:
Let’s look at several core differences between mediation and litigation in divorce.
Mediation is a series of sessions where the spouses and a mediator try to agree on all divorce terms. These mediation meetings can be in person or online. If the negotiations are successful, the couple draft and file a settlement agreement for the judge’s approval.
Litigation may include several court hearings, discovery (obtaining information through legal procedures), presenting evidence, etc. Afterward, the parties or their respective attorneys prepare the paperwork and let the judge decide all divorce terms.
A litigated divorce typically costs several thousand dollars. An average cost of a full-scope divorce with a lawyer in the U.S. is $7,000. In addition, you will likely pay for the discovery process, child custody evaluation, property appraising, etc.
In contrast, mediation costs are much lower. The average mediator’s fees are around $100-$500 per hour. If the spouses are willing to resolve their disputes quickly, they won’t need many hours of mediation and can decide whether to involve other professionals.
A litigated divorce may take approximately 12 months. Sometimes, the process extends to several years, depending on the level of conflict and complexity of the issues.
In mediation, the spouses control the timing and can proceed faster or take more time to discuss important issues. The fewer conflicts between the couples, the less time the mediation will take.
Litigated divorce doesn’t provide much privacy. Filing a petition or a complaint to start a divorce puts all your statements and accusations on public records accessible to anyone.
On the other hand, mediation is a confidential process where you and your spouse make all decisions privately rather than during a public proceeding. Any discussions and emotions are kept confidential.
The court will decide on your children’s custody and visitation in divorce litigation. However, the lawyers and judges are strangers to your family’s situation and dynamics and, therefore, do not always order what’s best for you and your children.
Mediation, on the other hand, gives you more freedom to make the decisions that you believe are beneficial to your children and ensure their safety and well-being.
Determining if divorce mediation suits you and your family requires considering your unique circumstances and several factors influencing divorce.
Mediation may be right for you if:
At the same time, mediation is not always the best choice for all couples. If you fear that your spouse may force you into an unfavorable agreement during the mediation by using threats or blackmail, opt for another divorce method, such as litigation.
Choosing between divorce mediation and litigation is a matter of analyzing your situation and priorities. Mediation is a cost-effective and low-conflict way to end a marriage, allowing you to control the divorce outcome. Mediation is the right choice if you believe you can manage your emotions to resolve your divorce quickly and less stressfully.
However, if your divorce includes complex issues and controversial disputes over property and children, you may require lawyers and court involvement.
However, even litigated divorces sometimes settle before the final hearing. Therefore, couples going to court may still benefit from attempting to agree on some issues through negotiation before proceeding to court.
Natalie Maximets is a certified life transformation coach at Online Divorce. She is a published author focused on the most progressive solutions in the field of Psychology. Natalie helps people go through fundamental life challenges, such as divorce, and build an entirely new life by reframing their personal narrative.
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