Mediation or Litigation?

by | Jun 23, 2024 | Divorce, Property Division

If you’re currently going through a divorce, there are two primary ways that you and your soon-to-be ex-spouse can resolve the issues that lie ahead, which is to do mediation or litigation. A party can go through a more traditional route, which is known as litigation. During litigation, arguments are usually heard before the presiding Judge, and then the Judge makes a ruling on what they believe is in the best interest of the Parties. However, Parties seeking divorce can also participate in mediation, where the Parties elect to go a mediator to help them come to an agreement on all issues regarding their divorce.

Mediation or Litigation, each has its advantages and disadvantages, understanding them both can best guide you to make the proper decision during this difficult time.

What is Mediation?

Mediation is a form of Alternative Dispute Resolution (ADR), an alternative method for resolving issues in a divorce. During mediation, you and your soon-to-be ex-spouse consult with an impartial, neutral third-party, to resolve any matters that need to be resolved. The mediator is completely neutral and essentially there to mediate, suggest strategies, and make parties come to an amicable agreement for settlement.

The Advantages:

Less Cost: As opposed to litigation, where there could be multiple court hearings, during this process often couples spend money most of their money fighting their problems at multiple hearings. This could then have an adverse effect on the community assets that a person may receive. Going through mediation is a simple solution to offset the cost of the divorce since it tends to be a more affordable process.

Faster Route: When couples go through the litigation process, they often spend years litigating all issues. The average time frame to end a divorce in California is fifteen months (if everything is smooth between you and your soon-to-be ex-spouse) with mediation the average time is nine months to agree.

Control and Flexibility: During mediation, couples have more control over the outcome of their divorce. Since each party during mediation are the ones that ultimately decide to agree to the terms or not, this is not the case for litigation.

 The Disadvantages:

Domestic Violence: When one party has a history of violence or continues to threaten the other party’s safety, divorce mediation may not be a suitable option. Since mediation is essentially an agreement between the parties, this will become extremely challenging in a dissolution where domestic violence has occurred, because the power dynamics are heavily skewed. In turn, this could affect the purpose of mediation.

Agreements that are made in Mediation are not considered Court orders, therefore, there would be no consequences if a party violates the agreement made during Mediation.

As the same for litigation, an attorney does not need to represent you to move forward with mediation. However, because the matters dealing with settling a divorce can substantially impact your life, you may want to talk to an attorney before making any final decisions and make sure the agreements made in the mediation are in your best interest. Additionally, an attorney can make this process easier; by helping you prepare for mediation and by drafting any documents that are needed.

What is Litigation?

Litigation is more of a traditional approach, where Parties seeking a divorce go through the Family Court system. Usually, a party files a Petition, commencing the Dissolution. Thereafter, the parties then meet with the Judge, and this is how litigation differentiates from Mediation, is once each party has presented their argument to the Judge, it is then up to the Judge to decide what is in the best interest of the Parties.

The Advantages:

Discovery Powers: In litigation, there is the discovery power, and the advantage is that during this process, there can be useful information gathered to essentially help your case.

Mandatory Disclosures: During litigation, parties are required by the Court for Parties to disclose their Preliminary Declarations of Disclosure, to ensure that each party knows the other’s finances before the dissolution comes to an end. Preliminary Disclosures are very important because they serve as a tool for the Court to be able to identify how to evenly allocate the assets of the Parties.

Enforcement Powers: The Court has the authority to enforce all Orders that were made. If a party was to not follow the Court orders, such as by failing to pay child support or alimony, the Court will issue an order requiring them to pay or the party would be at risk of being in contempt of Court.

The Disadvantages:

Cost: Litigation costs in California are one of the highest in the nation, and therefore once deciding to get lawyers involved in your divorce process, it is an automatic way to increase the cost of your divorce.

No Sense Control: Hiring an attorney is beneficial because an attorney will ensure that the case is moving forward in your best interest. However, the attorney can prepare and have an outstanding argument, present it to the Judge at a subsequent hearing, and still not rule in your favor. In litigation, the presiding Judge hearing the matters, just essentially has more control over how the disputes should be resolved.

As mentioned, this is a difficult process, and going through a Divorce can cause you to make a lot of choices, which can be overbearing.  Attorneys at Butler Law, PC are more than equipped to handle each scenario, and can also inform you on what the best route would be. If you are interested in learning more, please feel free to contact us today!