When facing a divorce, one of the first considerations people make is how they will proceed to resolve the issues in their matter. For many families, if preliminary negotiations do not solve all the problems, the choice comes down to mediation or litigation. Each approach has distinct advantages and disadvantages, and the right option depends on each family’s circumstances, priorities, and level of conflict. Below, we will break down the differences between each approach including cost, timelines, and practical pros and cons, to help you make an informed decision.
Mediation
Mediation is a voluntary, out-of-court process where separating spouses work with a mediator to resolve the issues of their matter, such as parenting, support, and property division. A mediator is a neutral third-party who assists in facilitating productive settlement discussions between parties to help reach a mutually agreeable compromise. The mediator does not take sides nor make a final binding judgment of their own for the parties to follow.
The benefits of mediation include:
- Lower cost: Mediation is generally less expensive than litigation.
- Faster resolution: Many mediations can be completed within weeks or months.
- Greater control: You and your former partner decide what is most important to you and what concessions you can live with making.
- Private: Mediation discussions are confidential and are not part of the public court record.
- Preservation of relationships: Resolving issues without the need for heated litigation can be crucial for co-parenting dynamics after separation.
The cons of mediation include:
- Requires cooperation: Both parties need to commit to engaging in mediation in a meaningful way, understanding that they will need to make concessions and likely will not walk away with everything they want.
- No guaranteed outcome: Since mediators cannot force a decision, a resolution only happens if both parties agree. A failed mediation can cause parties to incur further delay and costs to obtain a resolution of their matter.
Litigation
Litigation involves the resolution of parties’ disputes with the assistance of the court system. When the parties cannot reach an agreement, a judge will review the evidence, listen to the parties’ submissions, and make an ultimate decision on the matter.
The advantages of litigation are as follows:
- Conclusive and Binding Results: Judges have authority to make final and binding decisions for parties who are unable to resolve issues on their own, allowing parties to move on.
- Formal structure: A formalized process with strict rules promotes a fair process.
- Disclosure tools: The court can compel a party to provide certain documents in cases where there is dishonesty about finances. If a party otherwise fails to disclose required financial documents, they are at risk of being excluded from the court process.
- Better suited for complex cases: It may be difficult to reach an agreement outside of court when definitive answers are needed in legal grey areas. A judge can provide same.
The disadvantages of litigation are as follows:
- Higher cost: Legal fees can be substantial and parties who are unsuccessful at trial or a motion are at risk of being required to pay the winner’s legal costs.
- Longer timelines: Depending on the jurisdiction, it often takes several months or even years to obtain certain court dates.
- Public Process: If privacy is a concern of yours, court filings and appearances are generally part of the public record and can be seen
- Adversarial: Litigation can amplify conflict and increase emotional stress.
- Uncertainty: By engaging in litigation, the parties relinquish control over the outcome of their matter and have no final say. They are bound by what the judge decides.
Which Option Is Right for You?
There is no one-size-fits all answer. It is up to the parties to decide which direction they want their case to take. Mediation may be a right fit for partners who are willing to communicate and compromise, be transparent about assets, and who wish for their matter to be dealt with quickly and efficiently. On the other hand, litigation may be needed in cases where safety concerns, power imbalances, and lack of financial disclosure prevent parties from resolving disputes through negotiation. Speaking with a family law lawyer can help you better understand which process better suits your situation.