Posted in: Divorce
Divorce is not a single event. It’s a process that begins when a couple makes the decision to separate, and can last for years. Divorce can be costly, but the price is not limited to the expenditure of time and money; it can generate high mental and emotional costs, as well. To a large extent, these costs depend on how the couple manages the process. If the couple has children, it can also affect how the children will respond and adjust. The more contentious and lengthy the divorce, the more detrimental its impact is on everyone. It is important to keep in mind that the best option always depends on the couple and the situation.
For some spouses, divorce mediation may be a viable alternative to traditional divorce litigation. The principal difference between divorce mediation and litigation is that mediation gives the couple ownership and control over the process and the outcome. Mediation is intended to produce creative and flexible solutions designed to meet the needs of everyone involved. This, of course, requires a degree of collaboration that may not be possible for some spouses.
In a nutshell, mediation is a voluntary, confidential, and structured coming together of the spouses, in a safe and comfortable environment, with the assistance of a mediator. The mediator is a neutral party who helps to define the issues to be resolved and fosters communication between the parties. Mediation should not be confused with arbitration, which is an agreement to be bound by the decision of an arbitrator. Unlike arbitration, mediation does not involve an agreement to be bound by anything unless the parties reach a voluntary agreement to proceed with traditional litigation. Mediation is designed to produce a self-made, forward-looking agreement that the court will accept.
Divorce litigation, by contrast, involves the legal process. Prior to filing the divorce complaint, each spouse retains his or her individual attorney. After the process is initiated, all correspondence and exchange of information goes through the spouses’ respective attorneys. The discovery process provides for the exchange of financial information and other mandatory disclosures, interrogatories, requests for production of documents, depositions, case management conferences, motions, and pretrial conferences. It is designed to elicit all the pertinent information about the spouses’ assets, debts, and earnings. Applications for temporary support, temporary custody, or compulsory production of discoverable information also occur during this time. More often than not, however, a settlement will be reached and trial will not be necessary. Whatever the case may be, the resolution must address custody and visitation issues, child and spousal support, and the distribution of assets. All these steps can consume time and money.
Perhaps the most significant difference between divorce mediation and litigation is who makes the decisions. The spouses are the decision makers in mediation. They communicate with the help of the mediator to reach an agreement that works for the entire family. In litigation, the judge is the decision maker. The judge will hear the matter and make a final decision based on what is fair and equitable under the applicable laws. The judge also sets the timetable for the process, which determines how quickly the matter will be heard and resolved.
Because the court fixes the timeline for the process, litigation often takes much longer than mediation. Mediation consists of a limited number of 3-5 hour sessions, followed by completion of the necessary court paperwork. In litigation, it can take a year or longer just to get a hearing date. This is largely because it takes that much time to complete the discovery process because all communication must go through the attorneys and the court. Understandably, the more people are involved, the longer the process will take.
Mediation is generally less expensive than litigation. Overall, the cost of hiring a mediator is generally less than $5,000. Hiring an attorney to represent a spouse’s interests in litigation can be significantly higher, due to the complexity of the circumstances. These costs also vary depending on the nature of the issues and the other professionals involved. For example, spouses in mediation are encouraged to have independent counsel to advice them about their rights and obligations. However, hiring an attorney in an advisory capacity is still less expensive than retaining counsel for representation in litigation. Counsel will draft the mediation agreement into a binding contract, allowing the divorce to be quickly adopted by the court. This also makes post-divorce litigation less likely because the agreement will truly reflect the parties’ wishes. In the event things change, post-divorce mediation remains available to resolve conflicts that arise down the road such as modification of alimony, child support, and visitation rights.
Mediation also tends to reduce the collateral effects of the process on the couple’s children, if any. Mediation allows the spouses to determine the best interests of the children in terms of custody, parenting schedules, sharing of expenses, and support obligations. In litigation, the court resolves these issues, if contested, or they will be handled by the appointment of a guardian ad litem. Mediation may also prove to be less stressful on both the spouses and their children because it allows the parties to maintain control over the process, discuss each issue individually, jointly determine what is fair and what tradeoffs can be made, and how to proceed each step of the way. By retaining control over every aspect of the process, there is a greater likelihood that the integrity and dignity of the relationships between those involved—especially children—will be preserved. Conversely, litigation may produce feelings of anxiety, frustration, and helplessness because it involves putting the future of the family in the hands of the attorneys and the court.
There are a number of reasons why mediation might be the better choice for a couple seeking divorce. Not only does it give the parties greater control over the process, increasing the likelihood that spouses willing to collaborate will reach an amenable resolution, but it also tends to be quicker, cheaper, and less stressful. However, cooperation is key and mediation may not be right for couples that are unwilling to work together.
Regardless of which choice seems best under the circumstances, it is important for each spouse to retain an attorney who will work with the spouse to insure that his or her interests are properly represented and that the outcome of the process is fair and equitable in light of the situation.