Litigation Vs. Mediated Divorce
The decision to get a divorce is a very difficult one regardless of the state you live in or your circumstances. You have many options and it is important to understand which process is most appropriate for your situation. Choosing to mediate your divorce vs. litigation can be a challenging one if you do not know the differences between the two. During a consultation with one of the mediators at C.E.L. & Associates, Inc, we explain in non “legalese” terminology everything you need to know to help you make an informed decision. The first step to obtaining an optimal result for your family as you start the divorce process is choosing the right process. To help you make this decision, we have compiled a list of the advantages and disadvantages of both processes.
A. Litigation
Litigation is a process by which an attorney represents each party in the divorce. Each party’s attorney advises them and advocates exclusively on behalf of that person throughout the divorce process. The attorney is there to help the party resolve the case either by negotiating a final settlement agreement or, if necessary, by going to trial and litigating.
Advantages
1. Court has the power to discipline
Some parties to a divorce deliberately abuse the process to punish the other side. Judges are empowered to cite parties for contempt if improper tactics are used. Because the judge is making decisions, you do not have to make them for yourself. If a spouse is hiding assets, litigation enables you to compel disclosure of financial records. You can also request records related to income, employment, and other facts relevant to the proceedings.
2. Avoid blame
Your attorney is controlling the process instead of you, so your spouse cannot blame you for wanting things they may not want to give you. Your attorney can negotiate a potential settlement on your behalf. When emotions are running high, or if your spouse is a bully, it is helpful to have a strong advocate in your corner.
Disadvantages
1. Expensive
In a litigated divorce, you will be paying attorneys’ fees not only for court appearances but also for the work they do outside the courtroom. This includes every telephone call, every email, drafting documents, conversations with your spouse’s attorney and reviewing documents. The longer the divorce drags on, the more work (and fees) you will generate for your lawyer. If the court has a busy docket, the case can be broken up and tried in bits and pieces on different days that can be separated by weeks, if not months. Decisions may be postponed even after trial.
2. Create a future adversarial relationship
Your attorney may not do what you want him or her to do and this might create an adversarial relationship with your spouse, making it difficult to negotiate and solve problems in the future. You and your spouse may not feel committed to the results because of a lack of participation in the process, and bitterness fostered during the proceedings or lack of fairness in the result.
3. Time-consuming
There are many steps involved in a litigated divorce with lawyers, and the steps vary from state to state and couple to couple. Often, a party may not want to follow a judge’s orders if they feel it was unfair, against their interest, or simply do not feel like it. If an agreement cannot be reached on one or more of the issues using this approach, the divorce will continue through the family court system. Enforcing court orders can be expensive and emotionally taxing. This process typically takes longer than a mediated divorce.
B. Mediated Divorce
Mediation is a unique alternative to litigating your divorce. It provides a gentler, more efficient approach to navigating the sometimes tricky legal process of divorce. It usually ends up being less stressful, less costly, and easier for the entire family to move forward. It is more efficient, costs less, and empowers you to make decisions for your children and your finances.
Advantages
1. Flexible in nature
Due to the more relaxed, facilitated process, the lines of communication are kept open and allow for brainstorming of unique solutions to solve any contingency. This flexibility allows for a cooperative approach rather than a combative atmosphere where everyone is left feeling exhausted and dissatisfied. As mediation offers creativity and flexibility, if you and your partner agree on the details and your mediator feels that it is fair, you can pretty much dictate how you want to split the assets and handle parenting issues. This assumes that the mediator believes a judge would approve of the settlement you create.
2. Improves communication
Mediators are specially trained to diffuse highly-charged situations and are able to soften intransigent emotions and remove blocks to an agreement. Communication between the parties cannot improve when they battle through their attorneys’ voices and become afraid they may say the wrong thing. Without communication, no one has an opportunity to explain themselves, their reasoning behind what they want or need, or even to apologize or admit they may be wrong. Mediation encourages expression of emotions, reasons behind a position and ongoing communication, thereby encouraging a better future for all parties involved.
3. The parties are in charge
The mediation process allows you to be the architect of your life and that of your family going forward. It gives you control over the process. You will have learned a new language of compromise and how to navigate adversity with your former spouse. The premise is to promote friendly cooperation that is mutually beneficial to everyone. The mediator’s job is not only to help with agreement over terms of the divorce but also to remove emotion from the process and help both sides behave rationally. The trickle-down benefit to the children is immense. In choosing mediation, you will endorse a positive process rather than burning bridges that might damage your family going forward.
Disadvantages
1. No legal advice during sessions
Mediators do not give you legal advice. When you do not have an attorney, no one is looking out for your best interests, just the mediator looking out for everyone’s. No one is advising you so you can make the best decisions for yourself. Mediation requires you to do homework and advocate for yourself in the process. If your spouse is hiding assets, the mediator may never find out. If you have an attorney representing you, the attorney can use the discovery process and an independent investigation to determine whether your spouse is hiding assets. You may, however, have an attorney advising you behind the scenes and educating you about the law as you go through mediation.
2. Possible lack of cooperation
If you do not employ a skilled mediator, the lack of cooperation by either party may result in an impasse. Mediation relies on the cooperation of both parties for mediation to work. If the parties involved in mediation are not able to compromise, the process may not be successful. It is scary to be your own voice and ask for things from your spouse. It is possible for mediation to end without the parties successfully reaching a settlement agreement.
3. Either party may go back on agreements
The agreements are not legally binding until you go to court and have the agreements signed by a judge at the prove-up. This means either party may change their mind at some point, as mediation is confidential and cannot be used in court.
Final Thought
Clients who are relatively amicable/want to be amicable, are willing to negotiate and compromise, who both desire to keep their children’s best interest at the forefront of the divorce, are the ones that do best with mediation. By discussing the issues as parents, instead of litigants, you can outline the terms of your settlement, including sharing parenting time and child support, so you both can focus on what is truly best for your children. You are going to adhere to the agreements you made for yourself in mediation, and have a better co-parenting relationship going forward, as you are the ones making all decisions and have the “buy-in” to them. Litigation, on the other hand, can burn bridges with your spouse, bridges that will never be repaired. However, if your spouse refuses to cooperate, you may need to hire attorneys and proceed with litigation. Clients who are afraid of their spouse, or cannot advocate for themselves, do best with litigation. Your safety should be your number one concern, so if you are afraid for your safety, you’ll want to get an attorney instead of using mediation. The cost and control over the process should be the biggest factor for you when choosing between the two. Talk to a professional and figure out what method best suits your situation.
If you are looking for divorce mediation and parenting coordinator services across Chicago and the surrounding areas, reach out to us at C.E.L. & Associates, Inc. Our mission is to facilitate conversations among family members during any kind of conflict or transition. Our divorce mediators primarily help couples through separation, divorce, and post-decree issues and assist with the dissolution of their marriage and re-structuring of their family unit, in a civil and private setting. We provide the tools, structure, and guidance to enable you to make informed decisions and advocate for yourself. Our compassion, experience, and style help guide our clients through any difficult situation.
We offer services like pre-decree divorce agreements, post-decree divorce agreements, marital/family mediation, and co-mediation services to clients anywhere in Illinois, Indiana and Wisconsin.
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