Mediation is the process where both parties meet with a trained mediator to discuss a settlement and a cooperative resolution. Ending a marriage is never easy, and generally speaking, resolving a divorce can be complicated. Choosing to mediate (rather than litigate in court) may help reduce the emotional stress, contentiousness, and financial burden that come with divorce.

Whether mediation is right for your situation depends on a number of factors, including both parties’ willingness to consider reasonable settlement proposals. Understanding the positives and negatives to divorce mediation vs litigation is important to making the right decision in your case.

What are the Benefits of Divorce Mediation?

Mediation is an informal, out-of-court process by which spouses resolve the issues that must be determined in a divorce. Divorce mediation takes place in a neutral setting with the help of a third-party impartial professional, called a “mediator.” A party cannot force the other party to engage in mediation. It is a voluntary process by which both parties must agree, and either party may decide to leave mediation at any time.

You do not need to have already worked out all the issues that need to be decided in order to start mediation. A mediator can help to facilitate healthy communication and guide parties to reach an agreement, often a more creative solution than what may be achieved through traditional litigation in court.

The benefits of divorce mediation can include the following:

• Privacy — Unlike litigation (which takes place in an open courtroom and in the public record), divorce mediation is private and confidential. Nothing discussed during mediation becomes part of the public record. This confidentiality empowers parties to make generous settlement offers because in the event mediation is not successful, they cannot be used against that party in court.
• Cost-effectiveness — Mediation can be faster and less expensive than litigation, as long as both parties are willing to make and accept reasonable settlement proposals.
• Efficiency — When divorces are litigated, the amount of time it will take to conclude a case is largely dependent on the court calendar. Trial scheduling can take months or even a year or more. With mediation, spouses can schedule sessions at their convenience and resolve their divorce issues in as little as a few weeks.
• Amicability — Mediation encourages low-conflict and amicable dissolutions. This can be essential if spouses will be sharing parenting responsibilities of children.
• Control — With mediation, spouses have more control over the outcome of their case, rather than putting important and often personal decisions in the hands of a busy judge.
• Attorney Consultation — You have a right to hire an attorney to advise you on whether a settlement proposal reached in mediation is fair or appropriate. You control the level of involvement of your attorney during mediation. Your attorney may be participating directly in the negotiations at the mediation table, or your attorney may not be present, but you consult with your attorney before signing any agreement or making any big decisions.

While mediation can be a good option in most cases, there are certain situations where it would not be an appropriate tool. For instance, if you were the victim of domestic violence during your marriage, there is an imbalance of power, or you believe your spouse is hiding assets, litigation may be necessary.

When is Divorce Litigation Used?

If mediation is not an option or spouses refuse to cooperate, a divorce case will need to proceed through either direct negotiations outside of mediation or the court litigation process. Rather than work out property division, alimony, child custody, child support, and any other issues that need to be determined between themselves, spouses may request that a judge decide these matters at a contested hearing. While this is usually the approach taken in cases where the parties cannot agree, it is important to understand that spouses can decide to settle a litigated case at any time through negotiations or by using mediation.

In some cases, certain issues may have been decided out of court, and litigation is only needed to resolve a limited part of the divorce. For example, spouses may determine property division but be unable to reach an agreement regarding spousal support. In other cases, litigation may encompass all issues of the divorce — and the court will render rulings on the various issues that are specific to the case.

Divorce Mediation vs Litigation: Which is the Better Option?

Whether divorce mediation or litigation is the better option will depend upon the facts and circumstances of your case. However, mediation can often be a constructive first step for spouses who wish to end their marriage without judicial intervention. If a couple can reach mutually agreeable terms for a settlement, they may avoid going to court entirely. But even if they only settle a few issues, mediation can help to save a significant amount of money in the long run that would otherwise be spent in litigation.

Mediation can often be the better option if you have children and custody is at issue. By using mediation, spouses can help reduce the emotional impact of divorce on their children. Mediation allows spouses to have the opportunity to find solutions that work for the whole family — instead of allowing a judge, who is ultimately a stranger in a black robe, to decide your custody arrangement. A skillful mediator can help spouses determine what is in their children’s best interests.

Ultimately, the choice to use divorce mediation vs litigation to part ways is up to the spouses. An experienced divorce attorney can evaluate the facts of your case and help you decide which avenue to pursue.

Contact an Experienced California Divorce Attorney

If you are divorcing, it’s critical to have a knowledgeable family law attorney by your side who can guide you through the complicated divorce process. Located in Walnut Creek, Bednarczyk & Valerio, LLP offers confidential mediation services and represents clients engaging in confidential mediation in family law matters. Partner Cammila Valerio is a certified mediator available to provide impartial mediation services to parties. Call 925-464-2494 or contact us online to schedule a consultation to learn how we can help.