There are numerous different ways couples can approach a divorce. The methods used to resolve divorce disputes and create a divorce agreement covering things like child custody, spousal support, division of assets, and more will vary based on the unique circumstances of each couple.
No single method for resolving a divorce is inherently better than the rest, each is simply more appropriate for specific circumstances.
Two of the most common methods used to achieve a divorce and resolve divorce disputes are litigation and mediation.
Litigation is the more traditional form of divorce whereby the couple takes their case to court before a judge who will hear evidence and make decisions regarding the case. Mediation is a form of Alternative Dispute Resolution (ADR) where the couple sits down with a neutral mediator who will guide communication so as to help the couple reach equitable resolutions on the various aspects of their divorce.
In this blog, we have detailed some of the key differences between these two divorce methods. Keep in mind this is not an all-inclusive list nor is it meant to serve as legal advice for your specific circumstances. If you’d like a skilled family law attorney to review your case and advise you on the best approach based on your unique situation, contact the Law Offices of Kayleene H. Writer today.
Approach
The approach to litigated divorce and mediated divorce varies drastically. Litigation approaches dispute resolution from a much more contentious perspective. Parties each plead their case and try to protect their best interests. Mediation takes the approach of a guided negotiation. Couples communicate their needs and try to work towards an equitable resolution to disputes. Generally, mediation is a less contentious process than litigation.
Third-Party
In mediation, discussions are guided by a neutral, trained, third-party mediator who cannot give legal advice to either party. Each party may or may not have their own attorney assist them. The mediator does not make decisions for the couple. All settlements must be agreed upon by both parties or it will be referred to litigation. In litigated divorces, a judge will make all decisions regarding the divorce. Each party will retain an attorney to represent them and try to convince the judge to rule in their favor.
Cost
Generally, mediation will cost much less than litigation since you will avoid court fees, and oftentimes the process will be resolved more quickly since there is no need to schedule around a crowded court docket.
Flexibility/Formality
As we just mentioned, a litigated case will have to follow formal rules and hearings will be strictly scheduled on a court docket. Mediation tends to be much less formal and parties have much more control over how the mediation proceeds. For example, couples could choose to be in the same room during mediation or to remain in separate rooms and have the mediator go back and forth between them. Litigation has no such flexibility.
Privacy
Cases litigated in court will usually be a matter of public record, whereas California law dictates that mediated cases will remain confidential. This confidentiality is meant to allow parties to be more candid and open in all discussions, presumably helping to achieve a more favorable and fair resolution to the case.
Choosing between litigation and mediation for your divorce can be challenging and confusing. It is vital that you enlist an experienced family law attorney who thoroughly understands each process and can advise you on the course of action that will give you the best chance of achieving a positive outcome in your divorce. Contact the Law Offices of Kayleene H. Writer today and let’s discuss your case.