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Why do many divorce attorneys and courts recommend divorce mediation vs. litigation? How are they different? Why is mediation usually the preferred option? Divorce mediation is technically a step or a phase of litigation known as Alternative Dispute Resolution. However, it is often thought of as an entirely separate process outside of traditional divorce because of its many benefits. Divorce litigation technically refers to the overall divorce process, from filing the initial petition to reaching a final resolution. But, when people say they had a litigated divorce, they mean they had to move their case through the court system and prove it before a judge during a trial or evidentiary hearing. They usually are specifically referring to taking their divorce case to a final trial in family court. From a bird's-eye view, the steps to divorce—or the divorce litigation process—are:- Someone files an initial petition or complaint;
- A response is filed
- Disclosure and discovery are completed
- Alternative dispute resolution is attempted
- Then there is a final resolution.
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Schedule A ConsultationMeditation is Collaborative, While Litigation is Adversarial
Divorce mediation is a more collaborative process than litigation. To be clear, divorce mediation is not a Collaborative Divorce. Collaborative Divorce is a different method, although the two can produce the same result—an amicable or uncontested divorce. Reviewing the general process for each path may help explain why divorce mediation is more collaborative than litigation. The ultimate goal of mediation is for the divorcing spouses to walk out of the mediation with a complete, signed divorce settlement agreement—the divorce mediator is a neutral third party that works with each of you to get there. Generally, the divorce mediation process is:- Before mediation, both parties will send their positions on the outstanding issues to the mediator
- The mediator will review each side’s positions in preparation for the mediation
- At the mediation, the mediator will pick a person to start with to make the first offer
- The mediator will go back and forth between the parties to help relay offers and work on solutions to problems
- When the parties have reached a final agreement, the mediator will put it on paper for the parties to sign
Differences in the Decision-Making Process
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.” So, for example, hypothetically, let's say you are unrepresented and your mediator charges $350.00 per hour, and your mediation goes as follows:- The mediator reviews both Mediation Memorandums before mediation (1 hour)
- The mediator conducts mediation between the parties for (4 hours)
| Job | Time | Rate | Cost |
|---|---|---|---|
| Attorney Communication with Client Regarding Issues Between the Parties; case status; and preparation for upcoming hearing | 2.1 hours | $350.00 per hour | $735.00 |
| Attorney Communication with Opposing Counsel Regarding Issues Between the Parties | 1.1 hours | $350.00 per hour | $385.00 |
| Attorney Review of Orders Issued by Court | .2 hours | $350.00 per hour | $70.00 |
| Paralegal Work Related to Disclosure and Discovery | 1.7 hours | $150.00 per hour | $255.00 |
| Attorney Review of Disclosure and Discovery | .8 hours | $350.00 per hour | $280.00 |
| Total | $1,725.00 |
| Job | Time | Rate | Cost |
|---|---|---|---|
| Attorney Communication with Client Regarding Issues Between the Parties; case status; and preparation for upcoming hearing | 1.6 hours | $350.00 per hour | $560.00 |
| Attorney Communication with Opposing Counsel Regarding Issues Between the Parties | 1.1 hours | $350.00 per hour | $385.00 |
| Paralegal Work Related to Disclosure and Discovery for to Meet Final Deadline | 1.7 hours | $150.00 per hour | $255.00 |
| Attorney Review of Disclosure and Discovery to Meet Final Deadline | .8 hours | $350.00 per hour | $280.00 |
| Total | $1,480.00 |
| Job | Time | Rate | Cost |
|---|---|---|---|
| Paralegal Update AFIs for Trial | .5 hours | $150.00 per hour | $75.00 |
| Attorney Communication with Opposing Counsel Regarding Submission of Pretrial Statement and Exhibits | .4 hours | $350.00 per hour | $140.00 |
| Attorney Communication with Client Regarding Procedures for Trial, Timeline, and Deadlines | .6 hours | $350.00 per hour | $210.00 |
| Attorney Work Related to Drafting, Editing, Reviewing with Client, Finalizing, and Submitting Pretrial Statement | 6.5 hours | $350.00 per hour | $2,275.00 |
| Attorney Communication with Client Regarding Party Issues Leading up to Trial | .8 hours | $350.00 per hour | $280.00 |
| Attorney Communication with Opposing Counsel Regarding Issues Between the Parties | .5 hours | $350.00 per hour | $175.00 |
| Attorney Work on Exhibits for Trial | 1.4 hours | $350.00 per hour | $490.00 |
| Paralegal Work on Exhibits for Trial Re: Preparing for Submission and Preparing Various Trial Binders | 2.9 hours | $150.00 per hour | $435.00 |
| Attorney Review of Opposing Counsel Exhibits | .6 hours | $350.00 per hour | $210.00 |
| Attorney Preparing Direct and Cross Exam Questions | 4.8 hours | $350.00 per hour | $1,680.00 |
| Attorney Trial Preparation on All Open Issues, Including Review Opposing Counsel Pretrial Statement, Review Case File; Review Pleadings in Case; Review Direct and Cross Examination Questions | 3.1 hours | $350.00 per hour | $1,085.00 |
| Attorney Trial Preparation Meeting with Client | 1.5 hours | $350.00 per hour | $525.00 |
| Attorney Travel to Hearing, Meet Client before Hearing for Last Minute Questions, Conduct 4 hour Hearing, Discuss Hearing With Client After Completion | 5.7 | $350.00 per hour | $1,995.00 |
| Total | $9,575.00 |
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
Mediation offers many advantages, which is why it is promoted by most family law attorneys and the courts as the preferred resolution means. While the control, speed, and reduced cost of mediation are attractive—there are some potential cons to consider. Pros - More control over the outcome of the divorce
- Can be quicker and less expensive than divorce litigation
- Can help preserve relationships, particularly if there are children involved
- Allows for more privacy, as the process takes place out of court
- May not be suitable for cases where one party is particularly dominant, or there is a significant power imbalance. Or where there has been domestic violence during the relationship. But, if this is the case, having an experienced divorce attorney representing you during mediation usually cures this issue.
- If one party is unwilling to work towards a settlement in good faith, the mediation may not be successful. An uncooperative party may maintain unreasonable positions. In that case, you may need assistance from the court in resolving your case.
Pros and Cons of Divorce Litigation
While most agree that divorce mediation is the preferred method of completing the divorce, divorce litigation also has pros and cons. Litigation is usually more expensive, more prolonged, and more stressful, but it does provide people with a level of closure and a feeling of security. Pros- May be necessary in cases where there is a significant power imbalance or domestic abuse. If someone is in this position and unable to have legal representation in mediation, then assistance from the court may be necessary.
- Can provide litigants with a sense of closure, as the process is more formal and the judge makes the decision.
- Can provide an opportunity to be heard. In divorce, people are hurt and sometimes want to be heard.
- Can provide a feeling of security for unrepresented parties.
- Cases take a longer time to resolve
- Cases are more stressful and adversarial
- Cases can be more expensive to resolve
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