What is the Difference Between Divorce Mediation and Divorce Litigation?

Most people going through a divorce want it over as soon as possible so that they can move on with their lives.

The problem is that there are many potential pitfalls that can cause delays, expense, and stress.

Even divorces that start out as “uncontested” can turn into hotly disputed cases.

When problems arise, you have choices to make. 

Your decisions can greatly affect your finances, your stress levels, and your ability to draw a line under the past and reach an amicable settlement with your spouse.

One of the most important decisions is: divorce mediation or divorce litigation?   

The choice is usually yours…but what is the difference and which is best for you?  Learn more about this topic from the lawyers at Legal Solutions of New Mexico.  


Why do divorce settlements become disputed?

In many cases, two divorcing partners do not see eye to eye when considering how they are going to decouple and move on with their lives in separate directions.

This should not be surprising. After living together for years, the thought of separation is often upsetting. 

It can be a huge challenge to manage the emotions and to think straight enough to consider practical aspects of the future, such as:

  • Who will get custody of the children?
  • What will the visitation arrangements be for the non-custodial parent?
  • How much child support should be paid?
  • How will the marital property be divided?
  • Who gets the marital home?
  • Should spousal support be paid?

These issues are all ripe breeding grounds for conflict between a divorcing couple. 

Sometimes, they can be decided between the couple. However, in most cases, professional assistance is required.

That is when the lawyers or mediators may be called in.


What is divorce mediation?

Divorce mediation is the process by which a mediator is appointed by a divorcing couple in an attempt to resolve disputes and reach a settlement that can be passed through the courts.

The mediator must be an independent third-party that both spouses agree to appoint in an effort to reach a settlement out of court.

For divorce mediation to work, there must be a commitment from both parties to work towards a resolution and it is the mediator’s role to facilitate this.

The mediator will identify where the points of dispute are (these are usually the types of issues already outlined above) and then try to negotiate a mutually acceptable settlement.

It is important to note that the mediator does not make any decisions. He or she is not required to make a judgment and it is up to the two spouses to decide. 

If you are looking for a third-party to actually make a ruling, you need an arbitration process or litigation (discussed below).

All the mediator will do is try to lead the opposing sides to a satisfactory conclusion.

The mediator can be an attorney, retired judge, financial professional, or any other professional trained in mediation skills.


The main benefit of divorce mediation

The main benefit of mediation is that it can keep matters out of court.

A contested divorce can be a messy affair that drags on for many months (even years in some cases) and is generally an expensive, time-consuming, and stressful ordeal for both parties.

Mediation can help you avoid much of that.


When do divorces result in litigation? 

When divorcing spouses are unable to resolve their disputes despite their best efforts and the best efforts of mediators (and sometimes even arbitrators) they usually hire lawyers and begin the litigation process.

Each spouse will appoint a lawyer to advocate for them and to look after their best interests during divorce proceedings.

While the legal steps vary from state to state and county to county, the opposing lawyers will generally negotiate to try to resolve the outstanding issues first. 

Failure to reach an agreement will leave only one option remaining: to take it through the local family court system.

Once the court date is finalized, the lawyers (with the aid of their clients) will prepare the documentary evidence to present to the judge presiding over the divorce proceedings. 

There may be witnesses, financial and medical professionals called, and even children asked to give evidence.

The family court judge will then decide on the key issues, such as child custody, parenting, child support payments, marital asset division, and spousal support.

This all means that you have little control over the process. Other people advocate for you and other people decide on the settlement – and the decision will be a matter of public record.


The main benefit of divorce litigation

Divorce litigation can get you the settlement you want and feel you deserve – even if your ex-spouse and his or her advisors do not agree with it.

The judge in divorce cases is committed to making a fair judgement, especially when it comes to looking after the interests of the children from the marriage.

If it is impossible to achieve that without litigation, it might be your best option.


Should you opt for mediation or litigation? 

Mediation and litigation are very different processes and their suitability for your situation will depend on several important factors in your relationship with your spouse.

In most cases, providing there is an element of goodwill remaining and a commitment to “work things out”, mediation is preferable to litigation.

If the possibility of an amicable agreement exists, mediation will mean that you remain in control of decision-making, reduce costs, keep the stress levels manageable, and keep decisions private. 

You will also avoid lengthy delays. A mediated divorce can be wrapped up in 2-6 months while a litigated divorce will be more like 18-36 months.

Plus, there is no “winner” and “loser”. This means that you have more chance of remaining on good terms with your ex-spouse and the extended family, which is far better for the children.

If, however, negotiations break down, the other party is unwilling to negotiate or is suspected of hiding assets or domestic abuse, litigation may be the only way.

The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of The World Financial Review.