Is the Divorce Mediation Process Different from Litigated Divorce?
Litigation and mediation represent two completely different approaches to managing and resolving conflict. In litigation, each side is focused on “winning.” The driving concept is that there is only one pie to divide up, and if one party gets more than half, the other party must necessarily get less. This is sometimes referred to as a “zero-sum” or “win-lose” approach. In mediation, on the other hand, the idea is to find creative ways to maximize the entire pie, so that each side can potentially get 60%, 70%, or even more. This is sometimes referred to as a “win-win” approach.
Litigating a divorce tends to force spouses into polarized positions, increasing hostility and conflict. By contrast, couples choosing mediation make a commitment to approach issues in a collaborative manner, attempting to create solutions that expand available options in a way that a court setting does not generally permit. This approach is especially valuable for couples with children who need to preserve their co-parenting abilities.
The emphasis in mediation on maximizing positive results for both sides generally leads to a more open and trusting attitude between the participants. While the law requires full disclosure of all relevant information in any divorce, the nature of the litigation process often gets in the way of this goal. Relying on formal discovery procedures can be costly and inefficient. Stalling and game playing tactics are all too common. Mediation encourages parties to share information openly, honestly, and efficiently, allowing participants to move forward with creative solutions based on complete knowledge of the facts.
Benefits of Divorce Mediation versus Litigation
Mediating a divorce, rather than engaging in a traditional litigation process, offers many potential benefits, including the following:
- Mediation is more flexible. Participants in mediation retain the ability to set their own dates and proceed at a pace that works well for the family rather than being at the mercy of the court’s calendar.
- Mediation allows participants to control results. Mediators do not make decisions for participants. Your family law mediator will have special training to help you and your spouse clarify issues and negotiate solutions that provide maximum benefit to both of you.
- Mediation preserves confidentiality. Litigation takes place in open court and the proceedings become part of a public record, destroying the parties’ privacy. By contrast, mediation is a confidential process. Unless you and your spouse agree otherwise, nothing said in your mediation can be used in court.
- Mediation reduces conflict. Mediation will provide you and your spouse with a safe setting in which you will be able to express both the practical aspects and the emotional aspects of your most critical needs. Spouses who receive this kind of opportunity generally have greater success in understanding each other’s positions and reducing anger and bitterness. By contrast, the litigation process often adds fuel to angry or bitter feelings.
- Mediation protects children. If you and your spouse have children together, one of the greatest benefits will be the potential that mediation holds for improving their lives. Children of divorce benefit enormously when parents are able to use mediation to reach understandings regarding parenting plans and co-parenting responsibilities.
- Mediation saves time. Although many factors will affect the amount of time it takes to resolve your particular case through mediation, the process is almost always significantly faster than proceeding through the courts.
- Mediation saves money. You will be able to share the mediator’s fee with your spouse. While you will also benefit from having independent legal counsel throughout the process, attorney involvement is generally substantially reduced in mediation as compared with litigation.
Timing and Scope of Mediation versus Litigation
You and your spouse can choose to begin private mediation before either of you files for divorce in court, or you can switch to mediation later. The sooner you decide to mediate, the sooner you can begin steering your divorce toward an uncontested process, and the more stress and expense you will be able to avoid. You can use private mediation to resolve your entire divorce case, including division of assets and debts, alimony, and aspects of child custody and support, or you can limit mediation to only one or two issues. In some cases, courts will send spouses to court-mandated mediation to try to resolve certain issues before proceeding to trial. Spouses who are not able to reach agreement on every issue in either private or court-ordered mediation retain the option of proceeding to court. Limiting the issues that require a formal hearing or trial usually results in significant savings of cost and time.
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