It’s stressful when family problems require legal solutions. When you are facing divorce, child custody issues, or other family law disputes, it is often difficult to resolve areas of disagreement without professional help. The question then becomes what kind of help to seek. The good news is that there are more options available than there were just a few decades ago. The bad news is that even deciding on a method of dispute resolution can be overwhelming when you’re already reeling from the end of your marriage or a fight over your children’s future.

Most people are not fully aware of their family dispute resolution options. In this blog post, we’ll focus on two of the most common (but disparate) dispute resolution processes, and provide you with a foundation for choosing which method is right for you and your family.

What is the Difference Between Litigation and Mediation?

Litigation and mediation may sound somewhat similar, but they are very distinct from one another. Litigation is the process of taking legal action by filing a lawsuit and asking the court to resolve your dispute for you. For many years, litigation was the primary way to get a divorce. One spouse’s attorney would file a lawsuit (and yes, a divorce is technically a lawsuit); the other spouse’s attorney would answer the lawsuit, and several months, much correspondence exchanged, and several court appearances later, a divorce would be granted, either after a settlement was reached at the courthouse or after a trial.

Mediation falls under the category of “alternative dispute resolution,” or ADR because it is meant to be an alternative to litigation. Rather than taking place in a courtroom, mediation often takes place in the office of a neutral third-party mediator. The mediator is often an experienced attorney, but is not permitted to give advice to or advocate for either party. The mediator’s role is to facilitate a discussion that brings both sides to a resolution. During the mediation process, it is highly recommended that each party have their own attorney to advise them and explain the implications of any potential agreements they may wish to reach.

Parties to a family law dispute may decide to attend mediation on their own at any time before or after filing a lawsuit, or they may be ordered to attend mediation by a judge during the litigation process. Mediation can be used to resolve all pending issues in the dispute, or used to assist the parties with resolving one or two specific issues. Family law mediation may take one session, or multiple sessions, depending upon the number of issues to be resolved and their complexity.

Although a family law mediator is neutral, he or she is not a judge and does not make any decisions within the case. The role of the mediator is to assist the parties identify issues and possible resolutions to those issues; the mediator facilitates communication between the spouses, or parents, to help them arrive at a mutually acceptable solution without trial. Upon conclusion of the mediation, a mediator may memorialize the agreement reached between the parties or the respective attorneys can prepare a comprehensive divorce settlement agreement for signature by the parties. This agreement then can also be submitted to the court to also become a court order that further binds the parties.

As you can see, a divorce at the conclusion of the mediation process will still require some court involvement to pronounce an official end to the marriage or a resolution of a child custody dispute. However, the decision-making in a mediated divorce, or child custody dispute, rests in the hands of the litigants, rather than a judge. Most importantly there is much less time and money spent in court in most mediated cases. Mediation is one of several ways to divorce without spending time in court.

Divorce Mediation vs. Litigation: Advantages and Disadvantages

As divorce and family law attorneys, let us be candid: the more fighting and court appearances involved in your divorce or custody case, the more time-consuming and expensive it will be to the entire family. One of the primary advantages of mediation rather than litigation is that mediation promotes communication, cordiality, and cooperative problem-solving. Couples or co-parents who struggle to resolve issues on their own may have better success with the structure and support offered by mediation. Accordingly, by reducing conflict, mediation can also reduce the cost of the legal process and produce more lasting results.

When parties to a dispute have greater control over the resolution (as in mediation), they tend to be more satisfied with the outcome, and more willing to abide by the terms of the agreement. That leads to a more durable resolution, and less need to go to court to enforce or modify an order. Durability is critical in family law dispute resolution because the parties may still need to continue working together to co-parent their children, or operate a family business, for a decade or longer. The hostility that results from a contentious litigated case can make that difficult.

In summary, mediation can be less stressful, less time-consuming, less expensive, and more productive than litigation. That said, there are still times and reasons that you might choose litigation vs. mediation.

Litigation vs Mediation: When to Choose Court

While mediation offers many advantages over traditional litigated divorce, it’s not best for every couple or in every situation. Here are some circumstances in which litigation may be a better choice.

• One party doesn’t want a divorce and avoids the process. Private mediation is dependent upon both parties coming to the table. If one party isn’t committed to negotiation, or is actively stonewalling, it may be better to have the structure and deadlines of the litigation process to help move things along.

• There is a power imbalance between the parties. In mediation, parties need to be able to negotiate fairly. That’s difficult to do if there is a significant power differential, such as in situations involving economic oppression, sophisticated business acumen or incidents of domestic violence. Litigation may be necessary to protect the party who perceives themself as having significantly less power in the relationship.

• One party has severe mental illness or substance abuse issues. These conditions may prevent a party from being able to do the work necessary to negotiate in good-faith.

• One party is not interested in dealing fairly. If one party to a family law dispute is not committed to dealing honestly or fairly with the other, mediation simply will not work. For example, mediating a divorce from a narcissist can be particularly difficult, because the true narcissist is interested only in getting their own needs met, not in reaching a solution that is fair and equitable to everyone or doing what is best for the children.

• One party may be hiding assets. One particular form of dishonesty that may rule out mediation is when one party is or may be concealing assets. A couple cannot agree to a fair distribution of property if one, or both parties, is unwilling to make a full financial disclosure. The structure of the discovery process Discovery in Family Law Cases | Strickler, Platnick & Hatfield, P.C. (modernfamilylawfirm.com) during litigation may be needed to ensure fairness.

Although many couples benefit from mediation, litigation is always an option if mediation is unsuccessful or if only partially successful. Even if you are committed to trying mediation, it is extremely helpful to work with an experienced family law litigator. A seasoned litigator also understands the mediation process and can advise you of what a judge might order in your case so that you can be a better-informed negotiator and can help you structure the best deal possible in mediation. And if mediation falls through, an experienced litigation attorney is prepared to also protect your interests in court.

To learn more about mediation, litigation, arbitration, and other forms of dispute resolution, contact Strickler, Platnick & Hatfield to schedule a consultation. We are not only experienced litigators, but trained family law mediators and skilled negotiators.