As we mentioned above, in divorce mediation, you and your soon-to-be ex-spouse make the final decisions by reaching an agreement. The mediator does not decide for you. At trial, the judge makes the decision.

In divorce mediation, both parties have input and some control over the final agreement.

This control gives you more flexibility in the outcome of the case. Flexibility is especially important in divorce, where parties resolve financial security and family issues.

Maybe what a court would order doesn’t exactly fit your family dynamic. Perhaps you need a very specific parenting time schedule in your parenting plan that the court may not be able to give you. Or maybe, you need more cash now vs. retirement assets and want to negotiate for that.

At trial, the judge makes the decision.

You give up any control in the final outcome and instead rely on the persuasiveness of your evidence and testimony at trial. The judge, a state employee, and someone who has never met you before will have to decide your financial security, when you see your children, and you will make major decisions for your children.

The judge will make the decisions based on the limited time you get for a trial and the evidence and testimony at trial. Judges are often saddled with deciding some of the most critical issues in people’s lives after hearing from them for only a few hours.

So, instead of letting someone that doesn’t know you decide the rest of your life for you, after listening to you for a couple of hours, consider retaining some control and attending divorce mediation.

You know what works for you and your family better than anyone else. Leaving it up to a judge will usually bring the thoughts of: “If I had just said X, maybe they would have agreed with me” or, “If I didn’t get so nervous during my testimony, I would have done a better job.”

Differences in Speed of Resolution and Cost

Speed of Resolution

Divorce mediation is often a faster form of resolution and cheaper.

In our office, if the parties are prepared, mediation is usually completed in one session–although sometimes multiple sessions are necessary. Depending on the party’s schedule, we can usually get people in for a private mediation within a few weeks.

Suppose you attend mediation and reach a complete agreement with the other party. In that case, the agreement can be memorialized in a Consent Decree—the formal document to be submitted to the court.

Usually, your attorney will draft these for you. If the parties are unrepresented, the mediator may be able to prepare them depending on the circumstances—discuss this with the mediator.

In Arizona, if you are passed the 60-day waiting period, the parties can submit the Consent Decree for the judge’s signature. Generally, once the judge signs the final decree, you are done. There may be some transfers of title and retirement accounts to complete, but the divorce itself is done.

If you take your case to trial, you must work on the court’s schedule.

Our courts are very busy, and it can take several months to get enough time for your issues. In Arizona, if you are litigating all the issues (financials and children) but do not have many other witnesses, the court will probably give somewhere between 4 and 6 hours for the parties to split—minus the time the court will take for housekeeping issues.

Depending on how busy your particular judge’s calendar is, it could take 3 to 6 months to find a time slot appropriate for the issues in your case.

If you have experts or witnesses requiring more trial time, you are looking for bigger blocks of time that can push your case further out.

Additionally, if you take your case to trial in Arizona, the judge has up to 60 days to enter their decision. When you walk out of the courtroom after trial, you are not done yet. You have up to 60 days to wait and see what the judge has decided.

Costs of Resolution

Divorce mediation is often much cheaper than litigation.

Mediation costs are usually limited to preparing for mediation, attending mediation, and preparing the final documents. If an attorney is representing you during mediation, you will have those fees too. Sometimes, involving potential experts in mediation is appropriate, so you would have those fees too.

In mediation, you are really talking about “what I am prepared to litigate in court,” “what I think I will be able to prove,” and “what I am willing to accept to avoid going to trial.”

As I mentioned, if you have an attorney, an expert, or have the mediator prepare formal documents, those would be additional fees. Take their hourly rate and multiply it times the estimated preparation time and the hourly rate to calculate the estimated additional costs.

By avoiding going to trial, you avoid the costs of preparing for trial, attending trial, the continued litigation leading up to trial, and gathering all of the evidence to prove your claims at trial.

Mediation and concessions made during mediation are also a way to avoid the costs of the judge disagreeing with your position.

In divorce, there is rarely a case where one side has no exposure to any aspect of the case. Concessions in mediation can hedge those “costs” of losing your argument.

So, for example, let’s say an attorney represents you and is taking your case to a four-hour trial set in three months.

This hypothetical assumes your attorney charges $350.00 per hour, the paralegal charges $150.00 per hour, and your case is not high-conflict, but you have yet to reach any agreements and are litigating several issues.

The hypothetical also assumes that you have already incurred and paid the fees related to filing the initial petition or response, preparing for and attending an initial hearing to set the case for trial, and there are no experts in your case.

The hypothetical also assumes that you are not filing motions with the court and having to get the court involved to resolve your disputes. We condensed the example below for simplicity. Your actual invoice from your legal counsel will likely have more details about the fees.

3 Months Before Trial

2 Months Before Trial

Month of Trial

As you can see, attorney’s fees add up quickly.

The total for the 3-month hypothetical above is $12,780.00.

Of course, your case is different from the theoretical above. The hourly rates in your attorney’s office may be higher or lower. But there may also be time required not identified in the hypothetical above. The hypothetical above also does not include any fees leading up to the three months before the trial.

Further, the major problem with the hypothetical above is that you spent all that money and endured all that stress, and then what if the judge disagrees with your position and rules against you?

Mediation can be used to help limit those risks, and having an experienced attorney with you during mediation can help you identify the strengths and weaknesses of your case and provide legal advice.

Beyond retaining some control over the case, how long it can take to resolve a matter in the litigation process, and the additional costs related to litigation, you may be concerned with the limited privacy in divorce litigation.

Privacy Differences

Divorce mediation allows for more privacy as the process occurs out of court.

In a divorce trial, the divorcing couple is before the judge in open court. Usually, anyone who wants to sit in on the proceeding is allowed to do so. The testimony is given in open court, in front of the judge, the court staff, and anyone else who may be present in the courtroom.

The “why” behind your request is out for the public to hear.

That “why” can often be personal and sensitive information that most prefer to keep private. The “why” is also detailed in the pretrial statement submitted to the court before trial. That pretrial statement becomes part of the record and is available to access as a public record.

Mediation occurs in a private setting.

Mediation is usually in the mediator’s office or over a virtual platform. The discussions are private. The confidential mediation memorandums given to the mediator are private and not filed with the court.

Privacy is intentional so the parties can discuss sensitive or personal matters to work towards a successful resolution.

Pros and Cons of Divorce Mediation