Many people avoid starting the divorce process because they fear it will turn an otherwise cold war into a hot war – an expensive, emotionally draining, and frightening one. It doesn’t have to be that way. When you are considering the best course of action for bringing a divorce that you don’t want to turn into a war, sometimes it makes more sense to go to mediation than it does to litigate the issues.
Mediation is a meeting and conversation with a trained professional (usually a lawyer, but not always) that has a license or experience in helping people find middle-ground approaches to their individual priorities, and can help the conversation remain on-topic for the disputed issues instead of focusing on the various injuries – emotional, physical, or otherwise – they feel the other has inflicted on them. This method focuses on reaching an agreement, rather than being found to be “right” or “wrong.” Often, the mediator’s job is to keep people focused on the decisions they have before them and to suggest helpful strategies or compromises that make both parties happy enough to settle the matter. If your focus is a quick divorce and making arrangements that leave both parties to the divorce feeling protected and heard, that is a sign that mediation has been effective and was the right choice.
What Are the Downsides to Mediation?
Mediation is about compromise and agreement. If your focus going into mediation is being declared right or having your ex be declared wrong, mediation will not accomplish that. Frequently, litigation does not accomplish that either, but mediation definitely won’t. Airing grievances, gaining apologies, admissions about past conduct, or other issues, is not what mediation will produce, and entering a mediation process with those goals will not create a successful outcome and will cost you significant resources in time and money (depending on whether you attend mediation for free through a court-service or through a private mediator).
Another downside to mediation is that nothing requires you, or your opposing party, to be reasonable. That means they could come to mediation with completely awful or unacceptable positions, and because mediation is “off the record” and there is no using statements or desires expressed in mediation against the opposing party, nothing requires either one of you to find the middle ground. If they, or you, come to the table with nothing but terrible offers, that’s a waste of opportunity and money, and because mediation isn’t a court process, usually, there is no filing a petition to award you any fees you incurred in going through it.
What Are the Advantages of Mediation?
Mediation can be a very efficient method of reaching settlement and avoiding the time, fear, and expense of a prolonged legal battle. It is also an excellent opportunity for parties with children to create a long-term plan, or Allocation Judgment, for how their coparenting arrangements will work now that they are separating into a two-household family. The Courts especially like it when parties can work that aspect out by agreement because it means that the Court doesn’t have to foist a parenting plan on you that may or may not work for your child(ren)’s best interests.
What About Divorce Litigation?
Litigation has its own upsides and downsides. Litigation is about bringing actions to court, and asking the Judge to decide on the issues you raise in your pleading or motion. If you choose the litigation route for your divorce, it can still be very possible to make agreements and decisions within the context of your case without waging a full-on legal battle. Frequently, a skilled lawyer with your best interests at heart will advise you as to many possible options for proceeding on an issue – either by contacting your ex’s attorney via email, bringing a motion, or putting the dispute on the back burner while the lawyer attempts to bring the whole matter to resolution. There are a thousand decisions like this in any parentage and divorce case, and a good lawyer will give you options and follow your lead.
What Are the Upsides to Litigation?
Finality, being declared the “winner” or the “loser” on an issue or issues, and allowing to opposing party’s statements in court against them can be a good strategy for any possible trial that may arise. If someone brings a meritless or otherwise in-bad-taste motion or pleading that is designed to prejudice you in the proceeding or is not rooted in reality, it is possible that the Court will sanction the other party (or you) for bringing that action so that you are not left holding the expense of defending yourself on bad faith allegations. This can additionally disincentivize bad behavior in the future, so it is an especially effective method of reducing the drama between two people who are breaking up or working out coparenting arrangements for their child when they are not otherwise getting along.
What Are the Downsides to Litigation?
Expense, legal and otherwise, and depending on which Judge your case is before; divorce litigation can draw the ire of the person responsible for the outcome of your matter – the Court. Litigation is often the only method of having a reasonable outcome to the disputes between you and the other party because, as I explained in the sections focusing on mediation, there is no requirement that anyone be reasonable or make compromises to get things done. Litigation is the basic framework that all divorce and parentage cases start out as – someone brings a petition asking the Court to intervene on a big issue, like a divorce or parenting responsibilities allocation, and in that context, the Court will do what it needs to do to be able to rule with sufficient information available to them.
Sometimes, that means that the Court will appoint a third attorney, like a Guardian Ad Litem or Child’s Representative, to investigate each parent’s fitness and determine your child’s best interests for significant decisions and parenting time. Although the Court would appoint this person, you and your ex would be the individuals responsible for paying that third attorney for their time, so it can compound the legal expense significantly when things are not agreed to reasonably.