Choosing the Right Path for Your Divorce
When facing a divorce, many people wonder what to expect and whether to choose mediation vs litigation in divorce. We’ve all seen television dramas about contentious legal battles: an exasperated, gavel-banging judge at the head of the courtroom and two angry people on opposite sides, each with an aggressive attorney, battling it out over every single issue.
The good news is that today, many couples are choosing to resolve their divorce issues almost entirely outside of a courtroom. There are, in fact, many methods of alternative dispute resolution that can be used by couples today, including mediation, lawyer-led settlement negotiations, and collaborative law, to name a few. This article will explore the pros and cons of mediation vs litigation in divorce, so you can decide which path makes the most sense for your situation. Let’s start with a closer look at mediation and why you may or may not want to choose it over traditional litigation.
What is Mediation?
Mediation, in essence, is a way to work through your issues in a cooperative way outside of a courtroom. Generally, couples will meet with their attorneys and a neutral third party called a mediator in an agreed-upon location. A mediator may also be an attorney or a retired judge, but this does not necessarily have to be the case.
Typically, prior to attending a mediation, the parties will work through the various issues that they need to address separately with their attorney. Certainly, these include important issues like child custody, alimony, child support, and property division – and may also include any other topics important to the couple involved. Discussing and working through the issues ahead of time can help each party determine what truly matters most to them and decide what matters they might be willing to compromise on. After all, compromise and a willingness to communicate openly are essential elements of any mediation.
After working through their issues separately, a couple will come together with their attorneys and mediator and have an official mediation. During the mediation, the couple, the mediator, and the attorneys will work through the various issues and try to come up with solutions that work best for everyone involved. This may not necessarily be easy, and it may take more than one mediation session, depending upon the complexity of the issues and the willingness of each partner to compromise. Ideally, however, the goal of the mediation is to eventually work toward an agreement that outlines the positions of the parties concerning the issues and their agreement on those matters. After the mediation agreement is signed, it will be submitted to the court for approval. At that point, it will become the official document governing the issues between the parties.
A Look at the Advantages and Disadvantages
As you might expect, mediation offers several meaningful advantages. Resolving issues outside of the courtroom can save time, reduce costs, and significantly lower stress levels. One of the most compelling reasons to choose mediation vs litigation in divorce is the ability to maintain greater control over the outcome, rather than placing that power entirely in the hands of a judge. In court, a judge makes the final decisions, often without a deep understanding of your family’s unique dynamics. Mediation, on the other hand, allows couples the flexibility to craft personalized solutions that truly reflect their priorities and future goals. After all, no one knows your family better than you do.
Another advantage of mediation is that if you need to change your agreement in the future, you can always work together to do so. Modifying an out-of-court agreement simply requires that the parties discuss potential changes, draft new portions of the agreement, and sign the amended version. This is very different from litigation, in which parties must seek modification from the court itself. Doing so can be time-consuming and costly, and ultimately, the court may not modify the agreement in the way that the parties wish.
While it’s clear that mediation does have many advantages, it’s important to recognize that it is not a one-size-fits-all option. In some cases, alternative dispute resolution isn’t ideal for a particular couple. There can be any number of reasons for this.
Sometimes, the issues that led to the divorce may be too difficult and painful to allow for open and honest communication between the parties. Emotions may be running too high, or a power imbalance in the relationship may make one party feel as if they can’t communicate openly and effectively. In other cases, there may be an issue like addiction or mental illness that prevents one party from being able to actively participate in a mediation. In other cases, the parties may simply be too far apart on all of the issues to allow mediation to be effective.
Whatever the situation, there are some instances in which it is best to let a court decide the issues. Let’s take a closer look at the litigation process together.
A Look at the Litigation Process
Those who have previously engaged in litigation of any kind may already know that it is not often a quick process. Usually, courts have many cases, so matters can move more slowly than they do in cases of alternative dispute resolution. As a general rule, litigation will consist of one spouse filing divorce papers on the other. The responding party then has time to file an answer, and at that point, litigation will officially be underway.
After the initial filing in response, the parties will engage in a period of discovery. Discovery is just a legal term for an exchange of information. The parties may ask questions of one another (also known as interrogatories) or exchange important documents needed to ensure that everyone is on the same page about the various issues in the case.
After discovery has been completed, the parties will generally attempt to work toward a settlement of the case regarding the various issues. This will often entail frequent back-and-forth exchanges between attorneys as they work toward solutions that are satisfactory to both parties. If they cannot do so, however, the parties will present their issues and arguments to a judge during a trial.
Depending on how complex the issues involved may be, the trial may last a couple of days or longer. The parties will have an opportunity to present evidence and call witnesses, and depending upon the age of the children involved, the judge may interview them as to their feelings and wishes with regard to custody if they are old enough to give those opinions.
After all witnesses have been called and all evidence has been presented, the judge will review the matter and enter a final order in the case. That order will contain the court’s decisions on all important issues, including custody, support, property division, etc. Once it is entered, the order will be binding upon the parties, and both parents will be required to follow it. Failure to do so could lead to contempt of court and various civil and criminal penalties, so it is important to seek modification of the order before deviating from it if necessary. Generally, in order to modify an order, a court will need to see substantial evidence that the modification is warranted.
The Law Office of Dustin McCrary – Here for You
Ultimately, deciding between mediation vs litigation in divorce depends on your relationship dynamics, communication style, and willingness to compromise. Understandably, all of this information about litigation, mediation, and how to resolve complex issues during a divorce may seem intimidating and overwhelming – and that’s okay. The good news is you never have to confront these issues alone. At the Law Office of Dustin McCrary, we are here for you.
We understand that divorce is one of the most significant events most people go through in their lives. That’s why you need a guide to walk with you on this journey. You need a guide who knows the path and the various potholes you may encounter and can help you through the journey as smoothly and successfully as possible. We are here to do exactly that. We’re passionate about helping our clients through a difficult chapter and on to a brighter one ahead. If you’re ready to get started, get in touch with us today. We look forward to helping you soon.