Divorce Mediation vs. Litigation: Deciding on the Best Approach!

April 12, 2023 in Uncategorized

Embarking on the divorce journey can be overwhelming, with numerous decisions and challenges. Reaching a fair and peaceful agreement regarding asset distribution and child support can be challenging as you and your soon-to-be ex-partner work on it.

Many couples work with a divorce mediator during negotiations to ensure fairness and cooperation. This article aims to clarify the distinction between divorce mediation vs litigation and assist you in deciding which option suits your circumstances.

What Is Divorce Mediation?

Divorce Mediation Vs Litigation fighting

Mediation for divorce is a helpful method to settle disagreements without needing to go through the court process. It is an example of “alternative dispute resolution” (ADR). Couples seeking a mediated divorce can find a qualified mediator to help them using either in-person or video sessions.

How Does Divorce Mediation Work?

The mediation process begins with the couple hiring a certified family law mediator. The mediator can also be an attorney or a mental health provider. Eric, with PeacefulSplit® Divorce Mediation, is both a Florida Supreme Court Certified Family Mediator, a licensed attorney, and a Licensed Marriage and Family Therapist. The unbiased mediator will assist both parties in their discussion and negotiation to ensure that each spouse comprehends the procedure and is able to present their offers and express their needs and goals.

Role Of a Mediator

The role of a mediator in a divorce is not to make decisions for the couple but rather to guide them toward a settlement that both parties can accept.

Instead of taking sides, mediators will listen to the concerns of the couple, intervene when necessary, and ask questions to help find a resolution.

A mediator’s main goal is to help the couple reach an agreement that works for both parties without going through a court trial.

The Mediation Process

The mediator aims to help each side reach a compromise, leading them toward an uncontested divorce. The settled issues are reflected in a formal settlement document called a Mediated Marital Settlement Agreement. Any resolved issues concerning minor children are reflected in a formal document called a Parenting Plan. Both documents are customized by Eric to your individual needs, and no two agreements are exactly alike nor are they just cookie-cutter documents.

Once mediation is completed and the parties both sign and notarize the agreements, they then can simply fill out the court forms for a settled uncontested divorce and file those forms with the court together with copies of the settlement agreements. The Court will then grant the divorce in an average of a month or two. This approach saves couples time, stress, and legal fees associated with going to court for a long-term battle.

The duration of the divorce mediation process varies, ranging from a single session to several. The length of mediation is influenced by the following:

  • The complexity of topics for discussion.
  • The willingness of both parties to cooperate and negotiate in good faith.
  • The duration between sessions.
  • The experience, training, and skills of the chosen mediator.

In Eric’s experience, over 60-70 percent of his mediations settle all issues in the very first session.

Recommended read: Practical Benefits of Divorce Mediations

What Is Divorce Litigation?

Divorce Mediation Vs Litigation Sitting

Even if both you and your spouse agree on most aspects and desire an uncontested divorce, there may still exist unresolved matters like property division, child support, and alimony, making the divorce process complex.

How Does Divorce Litigation Work?

To proceed with a divorce involving legal proceedings, the court must receive a divorce complaint. This will enable the filing spouse (petitioner) to ask the court to decide the end of the marriage, thereby officially terminating it.

Note: The legal procedures that follow require specific steps from both spouses – and set due dates for their completion. In a contested divorce, it is likely that the process can take up to a year or more before it is finalized.

In a litigated divorce, a family court judge oversees a trial that typically marks its conclusion. Although spouses can choose to represent themselves, the majority prefer to hire a divorce lawyer to offer advice, present arguments, and assist them in navigating court procedures and proceedings.

In a litigated divorce, the couple has the option to settle at any point in time which converts their case into an uncontested divorce. Although settling earlier is an option, it’s typical for spouses to wait until close to the trial to settle.

Divorce Mediation Vs. Litigation: Main Differences

To increase your chances of getting what you want in a divorce, let’s compare divorce mediation and litigation. Even though the outcome of both processes is the same (divorce), each approach has some distinct features that make it more suitable for certain individuals in different circumstances.

And without experienced professional help, the situation may become more complicated.

1. Comparing Costs

You will need to pay court filing fees when going through a divorce that is either litigated or mediated. However, the overall cost of traditional divorce litigation is typically much more expensive than the cost that comes with a mediated divorce.

With litigation, you must pay attorneys’ fees for both court appearances and work outside the courtroom. Your lawyer’s fees will increase the longer the divorce takes, as more work will be required. Legal fees can often run $10,000 to $50,000 or more if the divorce is complex.

As for mediation, spouses can attend mediation sessions without a divorce lawyer, and the cost is generally split between both parties. Typical private divorce mediation is billed hourly – meaning an unpredictable total expense and another uncertainty in the divorce. But at PeacefulSplit®, our flat rate fee of only $2,200 covers the entire process and includes all communications and the drafting and editing of the various settlement agreement(s).

This is a great option for individuals looking to save money on attorney’s fees and ensure that the process is handled promptly and efficiently. 

2. Have Influence in Making Decisions

If you decide to go to court for your divorce, the judge can make important decisions for your family, leading to uncertainty about the outcome.

Alternatively, mediation gives you and your spouse the power to make decisions together. With the help of a neutral third-party mediator, you’ll work through discussions to find a mutually acceptable resolution.

For successful negotiation, both parties must have a mutual understanding and communicate respectfully. Both parties must be willing to negotiate in good faith.

If you feel your spouse is inherently untrustworthy and may not have the right intentions, or if you want to “Win” and your spouse to “Lose, then litigation may be the better option.

3. Timeframe for Resolution

In a litigated divorce, you do not have control over the timeline, and the divorce will only end on the court’s trial date. However, if you settle the case earlier, the divorce can end before the trial date. 

A divorce that goes through the court system can take a year or more to complete. The timeline is affected by the schedules of both spouses and the court’s schedule of proceedings.

For a mediated divorce, both parties can work together to create the timeline that works best for them, and the process is faster than litigating. Most mediated divorces with Eric take only 1 session. Sometimes unresolved issues or complicated issues may take 2 to 3 sessions over the course of a few weeks, but it is ultimately up to both parties when they decide to finalize the divorce.

The duration of mediation relies on factors such as the intricacy of your case, the interval between each session, and your willingness to agree on what is just and sensible.

4. The Role of Emotions

Not only time commitment but also the role of emotions is important in a divorce. Litigation can be emotionally draining, as parties must endure waiting periods and court proceedings to get the final decision.

Divorce mediation allows spouses to have more control over the process, which can provide beneficial emotional support. In this type of setting, parties can speak freely and openly with each other in a secure environment, which may help reduce the stress levels associated with divorce.

Moreover, when couples discuss a settlement, they have a greater opportunity to communicate their emotions. This communication can lead to a more harmonious relationship between the two parties, which could benefit any children impacted by the divorce.

5. Considering Children’s Custody and Well Being

If you go through divorce litigation, a judge will make the final decision on various matters, including custody of and time-sharing with your children. However, the judge is unlikely to be familiar with your family’s daily dynamics.

To ensure your children’s safety and welfare, it’s advisable to consider mediation. This will give you and your spouse the opportunity to make decisions that you both believe are in the best interest of your children.

6. Privacy and Confidentiality

Divorce itself is heart-wrenching, but the thought of having your intimate details and decisions exposed can be even more daunting.

When you choose to go to trial for a divorce, the personal details of your case will be available to the public and anyone can come and observe the court proceedings.

However, if you opt for mediation instead, the discussions and negotiations will be kept confidential in a private setting between you, your spouse, and the mediator. This way, all emotional conversations and decisions made won’t be exposed to the public.

7. Control Over the Outcome

Getting a divorce through litigation or mediation both lead to the end of a marriage. However, a mediated divorce is usually less emotionally stressful and also requires a judge to finalize it. In mediation, both parties have an equal say in the decisions made, which is advantageous if there is a willingness to collaborate.

However, in a litigated divorce, you will have limited control over the outcome, and it will be the judge’s responsibility to determine what is fair.

Related: Tips To Prepare For Divorce Mediation

Basic Divorce Terms You Should Know

Basic Divorce TermsBrief Description
Decision to DivorceThe agreement between spouses to end their marital relationship
Child CustodyThe legal and physical custody of any children of the marriage
Child and/or Spousal SupportThe financial support provided by one spouse to the other or for the benefit of the children
Property DivisionThe allocation of marital property, assets, and debts between spouses
Alimony/Spousal SupportFinancial support provided by one spouse to the other after divorce
Marital Settlement AgreementA written agreement that resolves all issues related to the divorce
Time-SharingThe allocation of time each parent spends overnights with the children throughout the year, including holidays and school breaks.
Contested DivorceA divorce where spouses cannot agree on terms, and a judge makes decisions on their behalf
No-Fault DivorceA divorce where neither spouse is held responsible for the breakdown of the marriage
Property Settlement AgreementA legal document that outlines the division of assets and liabilities in a divorce
Divorce DecreeA final judgment and order from a court that ends the marriage and sets the terms of the divorce
Basic Divorce Terms

What’s the Difference Between a Divorce Lawyer and a Divorce Mediator?

Key PointsDivorce MediatorDivorce Lawyer
BackgroundCan come from diverse professions like accountants, psychologists, social workers, MFTs, or even lawyers. Eric has a unique background as a licensed attorney, certified family mediator, and licensed marriage and family therapist.Typically only have a legal background and education
RoleAct as an impartial facilitator whose primary goal is to guide the spouses towards a resolution of their issues; remain impartial in discussions and refrain from offering legal advice to either spouseAct as an advocate for one of the spouses, representing them in the legal proceedings and offering legal advice to them
FeesA PeacefulSplit® Divorce Mediation is only a $2,200 Flat Predictable Rate. Other mediators charge by the hour which leaves you with uncertainty and a lot of unknowns. Charge by the billable hour and require a large upfront retainer. Total Fees are unknown and unpredictable.

How to Determine Which Process Is Best for Your Situation

Understanding the Differences Between Divorce Mediation and Litigation

To make the best decision for your situation, it’s crucial to comprehend the distinctions between divorce mediation and litigation, no matter which path you choose.

Assessing Your Personal Situation

If your divorce does not involve a dangerous situation or domestic violence, it is often recommended and in your best interests that you opt for mediation. This approach allows both you and your spouse to maintain control over the process and keep the negotiations confidential.

It’s important to keep a positive relationship with your soon-to-be ex-spouse, especially if you have kids who will be impacted by the divorce. To achieve this goal, using a mediation approach to get divorced is very helpful.

Considering the Financial Implications of Each Option

It’s crucial to recognize the financial impact of divorce litigation and mediation because they have different costs and benefits.

Therefore, making a decision shouldn’t be taken casually. Before selecting the best option for your situation, you must thoroughly evaluate and consider each one.

Frequently Asked Questions (FAQs)

Who should consider divorce mediation?

If you and your spouse are willing to work together to develop a divorce agreement, consider divorce mediation instead of going to court and litigating. This way, you can communicate with each other and avoid spending a lot of money on attorney fees.

What does successful divorce mediation look like?

Mediation is a type of conflict resolution that aims to create a divorce agreement without the need for a long trial or an emotional fight, amongst other things. Successful divorce mediation looks like two parties who are able to come to an agreement on issues such as; division of assets, child support/custody, alimony, and more.

Can I still use a lawyer in the mediation process?

Some mediators work with represented spouses. At PeacefulSplit® Divorce Mediation, Eric only works with spouses who are not represented by lawyers. This is consistent with his philosophy that the primary people who should be making the decisions about the divorce settlement and children are the two spouses themselves. Yes, you can hire a lawyer during the mediation process. You may choose to have a lawyer review any documents before you sign them, however, it’s not required. It’s important that you and your spouse are both comfortable with the process, so it’s best to have a mediator who meets both of your needs. Overall, it’s important to find out what services the mediator provides and any tasks you might have to handle yourself.

What is the most difficult part of mediation?

Encouraging people to accept mediation as a viable means of resolving their disputes is often the most challenging aspect of the mediation process. Many disputes are deeply rooted in personal issues, and some individuals are willing to go to great lengths to have their day in court, regardless of the expense and time involved.

Divorce Made Simple & Cost Efficient with Mediation

As an experienced mediator at PeacefulSplit®, Eric knows that divorce can be challenging. He offers his expertise to help you make the best decisions during the mediation process. It’s crucial to remember that even uncontested divorces require careful consideration because they entail making important decisions that will affect your life significantly.

Therefore, it’s essential to plan each stage carefully. Eric recommends that you and your spouse discuss the possibility of mediation to reach a resolution quickly, peacefully, and cost-effectively.  Eric looks forward to helping you find the best solution for your specific situation through comprehensive mediation services.

You can contact Eric here.

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