Mediation vs. Litigation in Divorce

Cost:

If You Litigate Your Divorce …the combined attorney's fees for you and your spouse will start at $5000 ($2500 retainer for each of you in most cases) and, on average, end up being $30,000 or more. You pay for discovery (your lawyer getting his/her lawyer to ask him/her for more documents); delays (his/her lawyer telling the judge that more time is needed to amass more documents, etc. – and to hear this you gave up a day of work and schlepped downtown); countless phone conversations between the attorneys (his/her lawyer calling your lawyer to complain that you are stalling or being obstructive and that more documents are still needed); and (god forbid) trial and expert witnesses (now we’re over the $30,000 mark.)           

If You Mediate Your Divorce …you pay one mediator, pay for a document review by consulting attorneys, and file your paperwork – on average for $5000 or less.

Outcome:

If You Litigate Your Divorce …the outcome will be decided by a judge, a jury or a court-appointed arbitrator based on evidence supplied by the two attorneys. All communication will be done through lawyers and you will be advised not to communicate directly with your spouse.    

If You Mediate Your Divorce … the outcome will be determined by you and your spouse. With the help of your mediator, the two of you will work together to design an agreement that makes the most sense for you and your family – and who knows you better than yourself!

Confidentiality & Privacy

If You Litigate Your Divorce …all the filed declarations in which your lawyer and your spouse’s lawyer make hostile and embarrassing accusations in order to gain the upper hand are public records available to anyone to view, including the media, your children and even years later, your grand children. 

If You Mediate Your Divorce …the Memorandum of Understanding is private and all proceedings of the mediation process are confidential. Your mediator is bound to this confidentiality and may not even share your information with the court unless you say so.

Child Custody

If You Litigate Your Divorce …if custody is contested, the court will probably appoint a lawyer for your children and the lawyer may insist upon invasive psychological evaluations of the family. Then the Court will determine custody arrangements and those decisions will be lawfully binding and in effect until you go back to court to have them changed. 

If You Mediate Your Divorce …The two of you will determine what's in the best interests of your children and you can try out different parenting plans to see if they work and modify those plans as your needs and your children’s needs change, without having to go to Court.

Property Division

If You Litigate Your Divorce …the division of property will be based on which lawyer is the more aggressive at successfully presenting your case compared to the other lawyer; the mood the judge is in that day; and whether one or the other of you runs out of money or stamina for the fight.

If You Mediate Your Divorce … you will decide what is fair and equitable with the help of the Mediator.

Timing

If You Litigate Your Divorce …your divorce will follow the timetable determined by the calendars of your attorneys and the court.  

If You Mediate Your Divorce …you get to decide how fast or slow you want the process to proceed.

Follow Through

If You Litigate Your Divorce … it is quite possible that one or both of you may be bitterly resentful about how things were decided. This causes emotional friction every time you must comply with some order that was imposed upon you.        

If You Mediate Your Divorce … property settlements, child support, spousal support and parenting plans are more likely to be maintained because those plans were mutually agreed upon according to your own ideas of fairness.

Emotions

If You Litigate Your Divorce …you will be entering into a battle zone, for divorce is considered an inherently adversarial confrontation according to the law. No matter what your own intentions are of keeping the civility, the law is designed to have one side win the argument and the other side lose.

If You Mediate Your Divorce …you will be the master of your ship and the captain of your own destiny. You and your spouse can navigate towards a mutual respect that will make it easier to handle any future meetings. You will discover that it is possible to have a Good Divorce!

Rev. Rebecca Armstrong