How Mediation Differs from Litigation

Welcome to the second topic in our new series about using mediation to avoid divorce court backlogs. Last month we started with an overview of exactly what divorce mediation is.  Today we will talk about the main differences between mediation and litigation. This information will help you understand why it makes sense for most divorcing couples to use mediation at some point during their divorce.

Both litigation and mediation are methods of obtaining a judgment of divorce. Parties who settle all their issues in mediation can avoid court entirely by submitting a Marital Settlement Agreement (MSA) to the court. Parties in litigation commonly settle their issues and enter into settlement agreements as well, but only after formal court procedures, court appearances, and usually, greater attorney participation. If the parties do not reach an agreement, there will eventually be a trial, and a judge will make final orders in the case. Beyond this, there are many differences between litigation and mediation. Here are some of the most significant:

  • Mediation reduces conflict.

Litigation is based on the idea that for one person to “win,” the other must “lose.” This mind-set encourages conflict. Parties see each other as enemies. Available resources become like a pie with a limited number of slices. Mediation follows a different approach, encouraging collaboration over conflict. Rather than staking out polarized positions, parties look for creative ways for both of them to get more of what they want.

One way that mediation reduces conflict is by giving each spouse a safe setting to express needs. Divorcing spouses often have a history of difficult communication. Some have been locked in unproductive patterns for years, rehashing the same issues over and over without resolution. Mediators help couples become “unstuck” by facilitating conversations. The mediation format ensures that each party has a chance to speak while the other party listens. This generally leads to a greater understanding of each other’s positions, which tends to defuse anger and hostility.

  • Mediation offers greater flexibility and control.

Unlike judges, mediators do not make decisions for participants. Family law mediators maintain strict neutrality while helping divorcing spouses reach their own solutions. Mediators also help spouses stay on track and focus on major issues.

Mediation participants set their own pace and schedule sessions at their own convenience. This takes away the pressure of court deadlines and hearing preparation. Divorcing spouses decide what information to exchange and when, without being bound by rules of evidence or procedure. Because participants maintain more control, they tend to be more satisfied with results. This often leads to greater compliance with agreements.

  • Mediation preserves confidentiality.

Many aspects of litigation take place in open court and become part of a public record. By contrast, New Jersey law requires information produced in mediation to be confidential, with few exceptions. This is appealing to most participants, especially those who wish to protect their children or their public reputations.

  • Mediation protects children.

Studies show that divorce itself does not necessarily affect children negatively. Rather, children are upset by the conflict and hostility between parents that so often accompanies divorce. Attempts to turn down the temperature and reduce conflict can dramatically improve children’s mental and emotional health. Mediation helps couples with children preserve or improve their ability to co-parent after divorce.

  • Mediation can save money.

Litigation is expensive. Attorney time adds up quickly due to the need for court filings and appearances. If you hire competing legal experts, costs can skyrocket. People sometimes think that mediation will be more expensive than litigation because mediation requires hiring both a mediator and separate consulting attorneys, but the opposite is generally true. Mediation requires far less attorney involvement than litigation. Although hourly mediator fees can be as high as hourly attorney’s fees, the parties split this fee, either in an agreed percentage or as ordered by the court.

Many factors influence the total cost of mediation, including the complexity of a case and the level of conflict between the spouses. In nearly every case, however, overall costs will be lower than in litigation.

  • Mediation can save time.

Litigation generally takes longer than mediation. This is especially true now, with the recent increases in court backlogs. Even in ideal circumstances, court timelines can be unpredictable. By contrast, mediation participants schedule their own sessions at times convenient to both parties. Mediation also allows participants to bypass time-consuming procedures like formal discovery. Many factors affect how long it takes to resolve a divorce case through mediation, but it is nearly always faster than proceeding in court.

Next month we will talk about how mediation works in tandem with the uncontested divorce process. Meanwhile, if you have other questions about mediation, or if you are ready to get started, contact us today for a consultation with one of our mediators.