Divorce Mediation vs. Litigation: What You Need to Know

Flicker, Kerin, Kruger & Bissada LLP

Divorcing couples may choose from several methods to address disagreements during their divorce. The two most common approaches for resolving these disputes are mediation and litigation. These approaches are significantly different, with varying benefits and drawbacks depending on the needs of the couple. 

If you are considering a divorce, you will likely choose one of these two solutions to resolve any disputes. Selecting the best option for your situation can significantly reduce the demands and stress throughout the process. Below, we explain divorce litigation and mediation, how these dispute resolution methods work, and how to decide the most effective approach for your situation. 

What Is Divorce Litigation?

Divorce litigation is the most common method of resolving disputes between separating spouses. In litigation, you or your spouse submits your issues to a judge, who decides the outcome of your case and issues legally binding court orders. Couples may choose to hire a private judge to avoid delays with the public court system, or they can opt to stay in family court, which can be less expensive than the private option. 

Litigation can be used to rule on your divorce as a whole, or it may be focused on clearly defined parts of the situation. For example, a couple may divide their assets with other approaches, often through settlement negotiations, but have their child custody dispute heard in court and ruled on by a judge. 

During litigation, you and your spouse will schedule hearings or a full trial where the judge will hear your case. In many instances, you will need one hearing per issue over which you want the judge to rule. For example, you may schedule separate hearings for child support, asset division, and spousal support to ensure there is enough time to address each complicated issue. Some couples will settle the matter before appearing at court, while others will attempt negotiations without success and proceed with the scheduled hearing or trial.

At the hearing, your respective attorneys will present your cases before the judge, who will then issue a legally binding ruling on the matter at hand. If you and your spouse accept the ruling, it will become part of your final divorce decree once all matters have been settled. However, if either party does not accept the court’s ruling, they will have the opportunity to appeal the decision, which will require a new set of filings in the Appellate Court and will take many more months or years to resolve. 

If you and your spouse cannot come to an agreement through other methods of dispute resolution, you may be obligated to pursue litigation. However, litigation is not the best solution if you and your spouse remain reasonably amicable. Scheduling hearings and appearing in court can be time-consuming and stressful. Furthermore, litigation gives you fewer opportunities to negotiate small details, which can make the rulings less than satisfactory. It is often better to resolve as many disputes as possible through other methods to reduce the time you need to spend in court. 

What Is Divorce Mediation?

Divorce mediation is the process of negotiating your divorce settlement under the guidance of a neutral third-party mediator. You and your spouse will meet with the mediator to discuss issues related to your split. If you and your spouse elect attorney-assisted mediation, your respective attorneys will attend the mediation with you. The intention of mediation is for you and your spouse to work together to reach a mutually satisfying agreement regarding any disputes. Having attorneys assist the mediation process is beneficial because they can help speak up for their clients and help explain complex issues to their clients.  

The mediator is present to provide suggestions, defuse arguments, and keep the proceedings civil, not to rule on your split. Their role as a neutral third party allows them to see potential compromises that may not be obvious to you. Mediation is non-binding until you and your spouse reach an agreement. The mediator or one of the attorneys will take those agreements and draft a divorce settlement to submit to family court. This settlement will then be used in your final divorce decree and become legally binding.

Mediation is often an excellent way to draft a divorce settlement for couples who remain amicable or have relatively few disputes. With the help of the mediator, you may be able to productively negotiate with your spouse to resolve any disagreements without the need to schedule hearings or risk a judge making a ruling you find unacceptable. 

Despite these benefits, mediation is not the right approach for all couples. If you and your partner cannot come to an agreement or do not trust each other, mediation may waste more of your time. If your spouse is unwilling to make any compromises or makes unreasonable demands, mediation is unlikely to succeed. Mediation is not recommended for cases involving domestic violence either. In these instances, the litigation process may be better suited for you and your spouse. 

Determining the Best Resolution Method for Your Divorce

For many couples, mediation is the preferred approach for resolving divorce disputes. It is more flexible, faster, less resource-intensive, and less stressful than litigation. However, these benefits only hold true if both partners approach the negotiation process in good faith. Mediation works best for couples who:

  • Can remain professional in each other’s presence
  • Have relatively few disputes
  • Are prepared to negotiate and compromise
  • Want more control over the final settlement
  • Want a faster and less stressful divorce

In contrast, litigation is more likely to be the right solution for spouses who:

  • Have complex financial issues with no previous legal precedent
  • Have significant disagreements regarding any aspect of their split
  • Are unwilling to compromise with each other

If your spouse has already made unreasonable demands, refuses to discuss matters with you, or otherwise indicates that they are unlikely to negotiate, it may be simplest to pursue litigation from the beginning. 

Simplify Marital Dissolution With Experienced Legal Counsel

Both litigation and mediation can effectively resolve disputes between divorcing partners. If you are unsure which solution is better for your situation, you can consult an experienced divorce attorney from Flicker, Kerin, Kruger & Bissada LLP. Our knowledgeable Bay Area lawyers will help you determine the best way to approach your divorce to resolve disputes and finalize your split with as little stress as possible. 

If you and your spouse would like to pursue mediation but are unsure where to start, Flicker, Kerin, Kruger & Bissada LLP can help. All our attorneys are experienced litigators as well as consulting attorneys during mediation. Additionally, our Partner, Michèle Bissada, has over 20 years of experience serving as a neutral mediator. Contact our Menlo Park or San Ramon offices to discuss your case and learn more about how we can assist you during your divorce.

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