When getting a divorce, one of the first decisions you will face is whether to resolve your differences with your spouse through litigation or mediation.
Litigation is the traditional legal process where a court hears each party’s arguments and makes a decision that is legally binding on them. Mediation, on the other hand, is a process whereby you and your spouse negotiate a resolution with the help of a trained professional.
If you believe that you and your spouse can come to an agreement on finances and custody arrangements with the help of a professional, then mediation is typically the more cost-effective and least-contentious path. Many divorcing couples report feeling more satisfied at the outcome reached in a mediation. Mediation is also better for families who wish to keep their personal details private and not aired in a public forum.
In an amicable divorce, most parties mediate a divorce without attorneys present. However, even in the best of circumstances, it’s a good idea to hire an advisory attorney to inform you about your rights so you know what you may or may not be giving up in a negotiation.
Litigation should generally be a last resort. It is expensive, emotionally draining, and leaves important decisions in the hands of a judge who does not know you or your family. However, there are some circumstances where litigation may be the better choice.
Below are some signs that mediation may not be the best option.
1. You are the victim of domestic violence.
If you are the victim of domestic violence, it is probably best not to mediate your divorce. For one, it places you in the same room as someone who has been violent towards you, which can jeopardize your physical safety before, during or after a mediation session. Additionally, there may be a significant difference in “power,” whether real or perceived, which renders you unable to properly advocate for yourself.
If the parties are already living in separate residences and neither feels any further threat of physical harm, mediation could be an option.
2. Your spouse is hiding financial information.
If you believe that your spouse may be hiding financial information from you (either wealth or debt), you should think twice about engaging in mediation. This may be the case if your spouse handled all of the family’s finances and you were kept in the dark about how much money was coming in and going out of the household. Likewise, if you cannot remember reviewing a tax return before signing it (or you do not remember ever signing a tax return), this can be a red flag that your spouse is keeping information from you. Consult an attorney promptly, and be careful about entering mediation.
Unlike a court, a mediator cannot force a party to turn over documents or disclose information, so there is no guarantee you will have access to all of the pertinent information. A court may be the better venue to ensure full disclosure.
If you think your spouse is not disclosing important information about your finances, but you still wish to engage in mediation, make sure you are both represented by an attorney and that the attorneys agree to be forthcoming with financial documentation. Tenacity and a shared commitment to staying out of court, coupled with good legal advice, can often alleviate these concerns and ensure that mediation works.
3. Your spouse is not capable of caring for your children.
Substance abuse and health conditions (mental and/or physical) that affect your spouse’s ability to care for your children often end up derailing a mediation if your spouse is unable to acknowledge his or her conditions and limitations. Litigation may be necessary to force a result that will protect your children.
Only a shared commitment to staying out of court, coupled with acknowledgment of issues and a willingness to come up with creative solutions, will allow for mediation to work in these circumstances. Advisory attorneys can help in suggesting the right professional to become part of the mediation and facilitate what could otherwise be very difficult discussions.
4. You feel you cannot represent yourself effectively
If you feel there is a significant imbalance of power or that you will not be able to advocate for yourself effectively during the mediation process, then mediation may not be the best way forward. In a mediation proceeding, it’s your responsibility to represent yourself and make your own arguments. A mediator cannot serve as your advocate or argue your position. You can retain an attorney to help you help formulate your positions, but you must be prepared to engage in difficult discussions on your own.
How to Decide Whether Litigation or Mediation Is Right for You
Before any divorce proceeding, it’s important to consult an experienced attorney who is familiar with both mediation and litigation and ask for their advice. Make sure your attorney is someone you feel comfortable discussing these and other sensitive issues with.
If some of the signs above are present, but you’d still prefer mediation, your attorney may be able to come up with creative approaches to resolve your differences in a way that protects your rights and minimize discomfort.
For example, you and your spouse can hire your own attorneys and instruct them to negotiate your divorce. However, unless you both hire attorneys who are like-minded and who will work really hard to come to an agreement, you may end up in court anyway.
In some extremely contentious divorces, mediation can work, but “caucusing” may be required. Think peace talks, with each party in a different room and the mediator shuttling back and forth. This will be more expensive and more time-consuming, but if the commitment is there, this too can work.