Choices: Mediate or Litigate?

Remember the time your Dad insisted on pulling out your loose tooth before you felt it was ready?  Remember what it was like when you were hit in the stomach and you couldn’t catch your breath? Remember the time when your best friend moved away? Whether your pain was expected or unexpected, sharp or ongoing, it probably pales in comparison to how you felt when you realized your marriage was over. 

Society has trained us to think that our next step is to find a lawyer.  Yet for many of us, this is not a good choice. You may be unaware that the alternative to expensive, contentious litigation is 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:

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 attorneys.

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:

Both of you have a primary concern for 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.

Both of you are comfortable with joint or shared custody. We specialize in detailed agreements covering a wide range of issues and situations.

Despite intense hurt or anger, both of 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.

Neither of you want to spend thousands of dollars in court costs and lawyers’ fees.

Both of you want to maintain some control and dignity during a very difficult time. Mediation rests on the premise that each person has legitimate concerns, that there self-esteem should be protected, and that the winner/loser mentality of the litigation process is detrimental to a healthy outcome.  

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 to file your mediated agreement with the court.

What if I want to mediate but the other person isn't convinced?