Mediation vs. Litigation: Choosing the Right Approach for Your Divorce

Divorce is an unfortunate reality for many. In fact, in 2021 alone, there were over 690,000 divorces conducted across the US. Losing a loving relationship is tough, and going through a divorce is complicated and involves many complex decisions.

One of the most pressing questions is whether to pursue mediation or litigation to resolve and finalize the divorce. While mediation is generally cheaper and less adversarial, it may not be suitable for all divorce situations. In this article, we will explore the concepts of mediation and litigation to determine the most suitable dispute resolution method.

Mediation

In mediation, the divorcing spouses meet with a neutral third party, called a mediator, to negotiate the terms of the divorce themselves. The mediator facilitates communication between the spouses and helps them agree on issues like child custody, visitation, support, and property division.

Mediation sessions are informal and private to discuss options and find solutions both sides can accept. The mediator neither gives legal advice nor makes decisions. They structure the discussion while remaining impartial. The goal of mediation is mutual understanding and cooperation. If spouses reach an agreement, they can be written into a legal divorce settlement or consent order to finalize the divorce.

Litigation

In litigation, you take divorce disputes to a family court. Common issues include child custody, parenting plans, child and spousal support amounts, and division of property and assets. Both legal teams present evidence before the judge, who reviews all documentation and makes rulings to decide the outcomes, formally ending the marriage.

Finding the right divorce attorney is crucial because these cases can have significant financial and emotional implications that necessitate the protection of one's rights and interests through solid advocacy.  Reputed firms, like the Virginia Beach Law Firm, exist nationwide and are fully equipped to handle all manner of divorce litigation proceedings through competent guidance and advocacy.

Which Approach Is Right for You?

When going through a divorce, couples must decide whether to attempt mediation or proceed straight to litigation. Here are some factors to consider when choosing an approach:

1. Costs and Privacy

Compared to litigation, mediation typically costs less money and offers more privacy than litigation as discussions in mediation remain strictly confidential between the divorcing spouses and the mediator. You don't need to disclose anything to the court.

2. Control and Emotional Toll

Mediation provides an environment where couples can resolve divorce issues with less conflict and stress than in litigation. This is because, in a court, both parties inherently have opposing roles in contrast to mediation, which is more cooperative in nature. The mediator facilitates discussion rather than the couple arguing their cases against each other. Mediation allows spouses to participate directly in decision-making, so they don't have to rely on a judge's ruling.

3. Domestic Abuse and Deception

If there was domestic abuse in the relationship, mediation is inappropriate because there is a risk of manipulation, intimidation, or even harm. For instance, the victim may feel helpless and afraid to speak up in front of their abuser.  In such circumstances, it's better to opt for litigation and have an attorney negotiate on your behalf.

Mediation requires openness and honesty from both sides. A spouse may conceal assets by keeping separate bank accounts or unreported income to prevent the other spouse and mediator from knowing the full value of marital assets during mediation. If one spouse has a history of lying or hiding assets, it will not be productive.

4. Intent to Delay and Fault Claims

Mediation only works if both parties participate constructively. A spouse aiming to stall the process could utilize mediation's flexibility. For example, a spouse who intends to hide misdeeds like infidelity can try slowing down the process to reduce legal documentation of faults.

Making legal fault claims or having separate lawyers involved signals a high-conflict divorce that may be difficult to mediate successfully. In a fault claim, one spouse alleges that the other spouse was at fault for causing the marriage breakdown.

Endnote

Mediation provides a private, cost-effective way to reach agreements for uncomplicated divorces. However, when safety, trust, or cooperation issues exist, litigation allows a judge to make binding decisions if needed. Overall, the circumstances of each divorce must be considered carefully to determine the best dispute resolution path.

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