Does Your Divorce Need Mediation or Litigation
Divorce is a stressful and challenging time in your life, but that doesn’t necessarily mean that it has to result in a lawsuit. Mediation is usually a better choice, even in acrimonious cases.
But when is it appropriate to go into mediation, and when you should resort to litigation? Is mediation cheaper than divorce? How long after mediation is divorce final? If you are contemplating a divorce and you find yourself asking these questions, it would be a good idea to read about divorce mediation basics.
If you find yourself asking, “Should I use a mediator or a lawyer for divorce?”, it is important to first understand what each option entails.
What are “mediation” and “litigation”?
Divorce mediation is a negotiation process where you and your spouse will work with a trained divorce mediator to resolve the problems surrounding the divorce. This is a private affair, occurring outside the judicial system.
The mediator is a neutral third party who will help you and your spouse identify the disagreements that you have and will keep you on track toward developing an acceptable deal.
If you prefer, you may also have your divorce attorney present during mediation, but in many cases, this isn’t necessary and can even get in the way of reaching an agreement.
Divorce litigation is a legal process where you or your spouse file a lawsuit in court, seeking to have a judge rule in your favor on matters of property, custody, and other points of contention. Your attorney will represent you and argue the case on your behalf.
The best option: neither
In the case of amicable, cooperative divorces, you may be able to avoid any third-party intervention.
If you and your spouse can mutually agree on all of the details, then you don’t need to go to the trouble and expense. You can simply divide up all the assets yourselves, agree on custody terms (if applicable), and then get the divorce papers afterward.
Mediation and litigation are only for when you and your spouse can’t agree on the terms of the divorce.
Mediation Is usually better than a lawsuit
Divorce Mediation vs Divorce Lawyer – which is right for you?
If there’s a fundamental disagreement, then mediation is often the better choice.
This is true even in circumstances when it might not seem feasible, such as in the case of acrimonious divorces and even sometimes (though not always) in situations where domestic abuse has occurred.
This is because mediation has many advantages and a lot of flexibility, while litigation has many disadvantages. Here are the main benefits of using mediation for your divorce.
1. Mediation puts you and your spouse in control of the process
You can set the dates and times of mediation appointments. You can move at as slow or fast a pace as you need. And you can shape the process itself to adapt to your needs. With a court, all of this is out of your hands.
2. The mediator provides moderates between you and your spouse
This can make the process run much more smoothly. If you and your spouse aren’t capable of having a reasonable conversation by yourselves, the presence of an experienced divorce mediator can change the dynamic to something much more productive.
3. Mediation results in a settlement that both sides are happy with
Each spouse gets most of what they want, and any compromises feel reasonable and fair.
That’s the central goal of mediation, and it’s what the mediator helps you work toward. In comparison, with a lawsuit, it’s lawyer against lawyer, a fight for one side to “win” and the other to “lose”. But having winners and losers is rarely what’s best, especially if children are involved.
4. Mediation can be more thorough than a trial
You have as much time as you need to cover everything that you both care about.
You can also work as closely as you need with an attorney or family law CPA to sort out any complicated financial dilemmas. In contrast, the court’s time is limited, and you may not get to cover some of the small problems, which can potentially cause bigger problems down the road, such as with family heirlooms or tax issues such as innocent spouse relief.
5. Mediation is usually less expensive than a trial
With a lawsuit you’re looking at big legal fees, plus court fees and other legal costs. With mediation, you’ll pay the mediator, and you’ll pay your attorney for any consultations along the way (and for their time if they are present for the mediation). This still costs less than hiring the attorney for a courtroom battle.
6. Mediation is confidential, a lawsuit becomes public record
To stop the suit from being public, you would need to have a court “seal” the files on your divorce. That is an entirely separate legal process with its own requirements and expenses.
7. Mediation can help build constructive communication
This can be important for future matters of custody, family affairs, and anything else that may come up.
8. For lawsuit, the court will send you into mandatory mediation
The courts are very busy, and they recognize that outside mediation tends to produce a better outcome. So, it’s often better to skip the expense, delays, and risk of a lawsuit entirely and just enter into mediation in good faith.
When is litigation better?
The only time litigation is better is when you’ve tried and failed at mediation.
This is usually because one or both spouses are incapable of negotiating in good faith, or there are disagreements where neither side is willing to compromise.
In these situations, the finality and authority of a court of law is the only way to bring closure to a divorce and move on with your life.
But it is best to think of a lawsuit as a last resort.
Try mediation and talk with your spouse
Even though emotions and grandstanding often run high during a divorce, it’s still possible, with the help of a mediator, to have a constructive negotiation and reach an agreement.
It’s like cough syrup: not very tasty, but good for you.
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