Divorce Mediation vs Litigation – Which is Right For You?

I'm often asked, can I mediate my divorce case versus fighting it out in litigation in court? And mediation is generally a really positive way of expediting a divorce case and keeping the costs down for the litigants. It's not always successful, which results in litigation. So the difference between litigation and mediation is mediation works if the parties are able to communicate, work together, and amicably resolve the issue themselves without having to fight each other. Litigation occurs when the parties are incapable of working together and they need a tiebreaker, someone to make the decision for them about how their divorce is going to occur, the assets to be divided, custody of their children. That tiebreaker is the judge. So you don't have to fight with each other via litigation. But if you're incapable of reaching a consensus together, litigation is the only other option in dissolving your marriage, dividing your property, dealing with alimony, child support, custody, etc. Those parties that are able to be amicable with one another and set their differences aside to try to mediate a divorce case. In essence, they will meet together in a conference room, either with their counsel or if they don't have an attorney, on their own, and generally speaking, with a neutral third party mediator. The mediator's job is to help them clear any obstacles or roadblocks that they may have to be able to reach an amicable resolution. Mediation is generally a very cost effective way to expedite a divorce case. Keeps the conflict and animus down amongst the parties and expedites a speedy resolution of the case. Mediation typically can last anywhere from an hour to six hours, depending on the mediator and depending on the complexity of the case and the issues that need to be discussed and mediated. Mediation can occur whether the parties are in the same room together, or the parties will separate and go into separate rooms, and the mediator will go back and forth between the two rooms with the parties. Generally that's an effective way to keep animus and conflict down and to be able to really stick on the issues, to be able to reach a global resolution quickly. One question I get frequently is why would I want to litigate versus mediate a divorce action? And the short answer is if you have a spouse who's forthcoming with information, more specifically, you have access to bank account information, credit card information, retirement savings, mortgage information. It's very difficult for someone to negotiate and settle a case if they don't have access to all of the information of the marriage, more specifically the assets and debts. Thus, litigation can become necessary if you have one spouse who wants to play keep away with the information of the marriage because it's impossible to settle unless you know exactly what you're looking at. Once the parties are able to reach a resolution, a memorandum of understanding will be prepared which will memorialize the agreements that the parties reached in mediation, and then a decree of divorce will be prepared which will contain the essential terms of the memorandum of understanding. Upon creation of the decree of divorce, the parties will sign it, their counsel will sign it, and it gets submitted to the judge for signature as well. Upon signature by the judge, the decree of divorce is entered on the record and the parties are divorced and returned to the status of single and unmarried people, and the case is over. Divorce litigation occurs in several phases. The first phase of litigation is where a complaint for divorce is drafted and filed. In essence, one party is suing the other for for a divorce to return them to the status of a single and unmarried person. You're also asking the court to divide property and resolve the issue of custody and support. Upon filing of the complaint for divorce, the court clerk will issue a summons. A summons is a notice to the world that a lawsuit is pending. Upon receipt of the summons, a file stamped copy of the complaint and the summons are attached together and served on the other party. Upon receipt of the complaint and summons by the other party, the other party has exactly 21 calendar days to file a responsibility with the court, known as an answer. In the event that they hire an attorney, the answer will be filed in the appropriate requisite amount of time. If they don't and they choose to bury their head in the sand or don't respond in the appropriate amount of time time, the person that filed the complaint can file a default judgment and the court can dissolve the marriage without the participation of the other party. In the event that a complaint is filed, summons is issued and served, and the complaint is answered in the 21 calendar day period. At that point, the parties have the ability to attempt to resolve the issue of the marriage together. Specifically, they can try to negotiate at their leisure or in the event that they're incapable of doing so, a party can file a motion with the court. By filing a motion, the court schedules a hearing. They can file a motion for temporary orders to sell a home or anything that you need the judge to do on a temporary basis while the divorce action is passed pending. Typically, a judge will schedule that hearing upon filing of a motion within 30 to 45 calendar days. There is vehicles available to have the court hear motions earlier than that time period, but the normal ordinary course is, generally speaking, between 30 and 45 days. Upon filing of a motion that has to be served on the other party as well, and they will have an opportunity to file an opposition and generally speaking, a counter motion as well. Upon appearing for that motion hearing, the court will typically entertain argument on the issue that you've brought before it and issue temporary orders. Temporary orders are generally a band aid for the court to be able to establish clear guidelines and ground rules for the parties to operate while the divorce case is pending. Through the Phases of Litigation the next phase of litigation is discovery. Discovery is where your attorney or yourself will have an opportunity to issue written questions and requests for documentation from the other party. Discovery is guided by the rules of civil procedure, and there are certain time frames required for propounding and answering discovery requests. After discovery is concluded, typically the court will bring in the parties for a trial. The trial is, quote, unquote, the finish line or the time for the judge to evaluate the issues, listen to evidence to be present, presented, listen to testimony from witnesses and parties, and for the judge to make a decision in the case. Thus, the final phase of litigation is a trial. Upon the judge conducting a trial evaluating written or documentary evidence, entertaining oral testimony by witnesses, experts of the parties, the judge typically takes the matter under advisement and will issue a written decision with findings of fact and conclusions of law. The finding of fact and conclusion of law is basically the judge's summary of the issues, evaluation of the evidence presented, and final determination of the judge's decision on what you've asked them to adjudicate. So the phases of litigation are complaint, generally, motion, practice, discovery, and trial.