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Litigate or Mediate, That is the Question?

Remember the time your Dad insisted on pulling out your loose tooth before it was ready? That pain probably pales in comparison to how you felt when you realized your marriage was over. One of the next thoughts most people have is to find a lawyer.

You may be unaware of an alternative, divorce mediation. This is a time-limited, confidential process in which both you and your spouse meet with a neutral third person who helps you decide on the division of parenting responsibilities, where your children will live, how decisions will be made, and the financial issues of property and support. In many, but not all cases, mediation yields a more satisfactory resolution than an extended legal battle. How do you know which is right for you and in the "best interests" of your children?

While every case is unique, here are some broad guidelines:

Choose litigation when:

  • 1. There is a history or current threat of violence in the family. You cannot talk or negotiate freely if you fear for your safety.
  • Animosity between you and your spouse is so great you could not sit in the same room together. If being together triggers severe migraines, better to leave the direct communication to an attorney.
  • Your partner refuses to disclose financial information. Good faith negotiation cannot occur if one person is withholding vital information.
  • You or your partner is unwilling to discuss, even with a third person, the choices available.
  • Your partner is unlikely to keep regular appointments.

Choose mediation when:

  • 1. You are most concerned about your children's well being. Research shows that when there is less parental conflict during and after the divorce, children adjust more easily and are more likely to meet their potential as they reach adulthood.
  • 2. You are considering joint or shared custody. Mediators are trained to write detailed agreements covering a wide range of issues and situations.
  • 3. Despite intense hurt or anger, you want to keep the process as civil and peaceful as possible. Mediation offers an opportunity to improve and keep the lines of communication open for future cooperation as parents.
  • 4. You are unable to spend thousands of dollars in court costs and lawyers' fees.
  • 5. You want to maintain some control and dignity during a very difficult time. During a separation your self-esteem can get pretty battered. The winner/loser mentality of the litigation process often aggravates those feelings. Mediation, on the other hand, rests on the premise that each person has legitimate concerns.

If you are still are unsure which way to proceed, consider consulting with both a mediator and an attorney. Some professionals offer free initial consultations. Ask questions about the procedure, time frame, costs, payment method, the percentage of cases they successfully settle, other consultants you would need. Remember that you can stop mediation at any time and hire a lawyer to litigate. Or, if you've started working with a lawyer, you can shift to mediation, then return to a lawyer for legal advice and filing your mediated agreement with the court.

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