Most people perceive divorce and its subsequent proceedings as a messy, drawn out legal process. They imagine fierce custody battles that play out in the courtroom and cost a fortune to finalize. However not all divorces are created equal, thanks to divorce mediation. In mediation proceedings, both parties are encouraged to participate in negotiations and the decision making process. This puts the control with the people getting a divorce, not the attorneys and judge. We compare these and other key characteristics and differences between divorce litigation and mediation and pick a clear winner.
What is Divorce Litigation?
When parties choose to litigate, they are taking their divorce to a family court in order to resolve issues that each party can’t agree upon. Unfortunately, they are choosing to subject themselves to an out-of-date and backlogged court system. The courts do not have you and your family’s best interests in mind. Plus, the litigation process can be mentally and emotionally draining. Litigation can also dramatically affect other members of your family, namely your children. For the rest of their lives, they carry the memories of the battles during litigation.
The cost of divorce litigation, on average, is about $17,500 in California. However, most cities in Los Angeles county have much higher litigation costs. During the COVID-19 pandemic, there have been delays in formal processes that increase the amount of time and resources needed to litigate. You are paying for this time, most of which are formalities and, not necessarily, producing results for you.
Once you’re actually in court, a judge makes decisions for you even though he or she knows very little about you and your family. Despite this, the judge is the one to make decisions about your children, your property, your money and how you live your life. Plus, the records of your case are available to the public. As a result, you may say or do things in litigation that you regret later in life. To make matters worse, court orders are difficult to enforce. This means you may need to pay more to get the support you were awarded in a winning case.
All in all, litigation is combative, lengthy, emotionally and financially expensive and draining. The good news is that you have options, namely, divorce mediation.
What is Divorce Mediation?
In divorce mediation, you and your soon to be ex-spouse choose to meet with a neutral third-party mediator to end your marriage. The goal is to discuss issues including property, custody, child support and other financial matters. In addition, you aim to be cordial and prioritize what is best for both of you and your children.
When you choose to mediate, you are in control of your legal fees. Even though a mediator is present, a mediator cannot give you legal advice. You should still acquire legal counsel to ensure your rights are protected. In divorce mediation, you choose how long and often to use your attorney’s services. This way, you manage your fees and use your attorney as a divorce consultant who can provide legal advice when you need it.
Because decisions are made mutually and with civility, spousal support and parenting plans are more likely to be followed. You are encouraged to actively participate in the decision-making through the mediation process. This means you are in control of how long and how many times you meet and only agree to what is best for you while being advised by your attorney.
Comparison Table of Divorce Litigation vs Divorce Mediation
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Issue |
If You Litigate Your Divorce |
If You Mediate Your Divorce |
|---|---|---|
Fees |
You spend a lot of moneyThe average cost of a litigated divorce case in CA is about $17,500. You pay for formal discovery, delays caused by the court as well as parties and attorneys (which have been exacerbated by the pandemic), trials, countless phone conversations and letters between the attorneys. |
Fees are manageable and in your controlYou use the attorney’s advice and services as you wish. There is no unnecessary discovery done, no court appearances, and attorneys are not taking over your life. Your divorce consultant is available whenever you need them, and is not there when you don’t. |
Custody |
Your kids are in the middleIf the custody is contested, the Judge, a total stranger to you and your family, will make major decisions about how your family will function post-divorce. The Court may also appoint a lawyer for your children and the lawyer will probably insist upon invasive psychological evaluations of the family (and you’ll have to pay that attorney’s fees too). |
You protect your kidsYou, with the help of your divorce consultant and, possibly, a custody professional, will determine what’s in the best interests of your children. |
Privacy |
Your personal information becomes public record—Case details are now on the internetWhenever you file a declaration in order to gain points and win your litigation, they are public records available to anyone to view, including your children and grandchildren. You may regret the accusations you make in the future. |
Your private life remains privateMediation is a confidential process where decisions are made privately. Legal and emotional decisions are not made public and the conversations surrounding them remain private. |
Timetable |
It’s out of your handsYour divorce will follow the attorney’s and court’s timetable – not yours. |
It’s your decisionIt’s up to you and your partner on how fast or slow you want to take the mediation. You can come to temporary agreements, try them out, and then decide when to make them final. |
Compliance |
Hard to enforceMany times, a party may not want to follow a Judge’s orders if they feel it was unfair, against their interest, or they simply don’t feel like it. Enforcing court orders can be expensive and emotionally taxing. |
More likely to complyChild support, spousal support, and parenting plans are more likely to be maintained when mutually decided. |
Participation |
It’s not up to youYour attorney will negotiate property and custody issues for you, and will most likely spend time billing you without your knowledge until you see your monthly invoice. You will be advised not to communicate directly with your spouse in fear of what you might agree to and say. |
Participation and communication is encouragedWith the help of a neutral mediator and your divorce consultant, you and your partner will come up with solutions to resolve the issues in your case, such as property, support and custody, that work for you and your family. |
Outcome |
Someone else decidesThe outcome will be decided by a judge or commissioner who knows nothing about you or your family. |
You are in controlThe outcome will be determined by you and your spouse. You are in control of your own life based on the advice you receive from your divorce consultant. |
Is Divorce Mediation Right for You?
Divorce mediation is the most cost effective and amicable way of ending your marriage. You keep control of your time and resources as you go through the divorce. Most importantly, you prioritize your mental and emotional health as well as your children’s well being.
Keep in mind that as an unbiased third party, a mediator is not allowed to give legal advice to you nor your spouse. This is why it is important for you to have your own independent legal counsel from whom you can:
- Seek advice
- Evaluate and strategize settlement options
- Educate yourself on your rights and obligations as they pertain to your case before making any decisions
If you and your spouse are considering resolving your divorce through the mediation process, or on your own, retaining a divorce consultant will give you the confidence to know that you are making the right decision for you and your family.
Additional Benefits of Divorce Consultants
A Divorce Consultant also provides the education and guidance you need to make sound financial decisions during the divorce mediation process. Your divorce will likely be the largest financial event of your lifetime, and it is vital that you remain in control. The legal and financial decisions you make during this emotional time will affect your financial future.
A divorce consultant works closely with you and your mediator to help you understand how the decisions you make will impact your financial future. Our divorce consulting services support you with the following:
- Gather data to build a complete picture of your financial situation.
- Collaborate and strategize with you and your mediator to bring creative options to complicated settlement issues.
- Offer insight into the pros and cons of alternative settlement proposals to help you choose an option most aligned with your goals.
- Conserve precious emotional and financial resources.
- Offer an objective and compassionate viewpoint during an emotional time and provide a cost/benefit perspective of pursuing certain financial issues.
- Help you avoid the common financial mistakes made in divorce.
- Strategic planning to help you transition to your new financial life.
With mediation and a divorce consultant, divorce does not have to be emotionally draining, combative, lengthy, and expensive. You can make smart, healthy decisions all while feeling supported and ensured that your rights are protected.
The Bottom Line
Mediation (with a consulting divorce attorney) is the best choice when you decide to end your marriage, especially when you are prioritizing what is best for you and your children. If you have any questions about divorce mediation or consulting, reach out to us — we are happy to help.
I like how I can manage the fees better by mediating my divorce. That could save me a lot of money in the end. But it all depends on what my partner thinks.