How to Decide Mediation vs. Litigation
Posted in Spousal Support on September 1, 2022
If you and your spouse have decided that your marriage is over, you will need to go through a specific legal process to get divorced in California. The duration, cost and stress connected to the divorce process can be up to you, however. Most couples find that mediation is an easier, faster and cheaper alternative to litigation in a divorce case. Yet mediation is not possible – or suitable – for all couples.
What Is Mediation?
Divorce mediation is a form of alternative dispute resolution. It is a meeting where the two parties involved in the divorce have the chance to work through disagreements and points of contention to come up with a divorce settlement agreement. Communication during mediation is assisted by a mediator – a neutral third party who is typically trained in conflict resolution.
Mediation does not have to result in a divorce settlement. A mediator does not have the right to issue a divorce decree. If mediation succeeds, it will result in a document signed by both parties with the terms of the divorce, such as property division, child custody, child support and spousal maintenance. If mediation does not succeed, the case may go to trial.
What Is Litigation?
Divorce litigation refers to a dissolution of marriage that requires a trial before a judge. The California divorce litigation process involves multiple steps, starting with discovery. This is the gathering of information and evidence by both parties. Before the appointed court date arrives, the couple may go through pre-trial hearings and continued settlement proposals and negotiations.
If the divorce case proceeds to trial, both parties will have the opportunity to give opening statements, present evidence and witness testimony, and end with closing arguments. Then, a judge will render a final ruling or divorce decree. This ruling will finalize the divorce, making it official, and create orders that both parties must obey. The only way to alter a court order is to officially request a modification.
Pros and Cons of Mediation vs. Litigation
Making the decision between mediation and litigation starts with assessing how capable you and your soon-to-be-ex spouse are of working together, communicating and compromising on the terms of the dissolution. For mediation to work, both parties have to be open-minded and willing to come to a settlement agreement together. If you have a contested divorce case, where tensions are high and it is impossible to agree with your ex on any of the terms of the divorce, litigation will most likely be necessary.
However, there are several reasons to make an effort and attempt to resolve your divorce case via mediation. One is that California is a community property state. This means that if your divorce case goes to trial, a judge will divide all of your marital assets and debts down the middle. This will occur even if you earned the majority of the income during your marriage. Another reason is that divorce litigation is more expensive than mediation – sometimes substantially so, based on how much time and work must go into the case.
It may not be worth trying to attempt a collaborative divorce, however, if your safety or well-being is at risk by doing so. If your marriage involves domestic violence or a restraining order, for example, mediation may be out of the question. Depending on the circumstances, you may have no choice but to go to trial and argue your case before a judge.
Speak to a Divorce Lawyer About Mediation vs. Litigation for Your Case
Every divorce case is unique. If you aren’t sure whether mediation vs. litigation is right for you and your family, a divorce lawyer in Solana Beach can analyze your case and help you decide. Either way, your lawyer can represent your rights and best interests in the pursuit of a divorce settlement agreement or judgment.