Family law matters are difficult, without a doubt.
You can face a divorce, child custody conflict, alimony debate, property division problem, or a parental rights dispute with two basic legal avenues to take: mediation or litigation. And there is a catch….
Most people don’t have a clue as to which option is best for their situation.
Which avenue you choose can have dramatic impact on your finances, relationships, and timelines for your case. Let’s demystify the subject.
In this post you will learn:
- The fundamental definition of mediation vs. litigation in family law
- The primary difference between the two processes
- When mediation makes sense as a resolution
- How the litigation process works in family court
- How much each process costs
What Is Mediation vs. Litigation?
Let’s start with definitions.
Mediation in family law is a process where parties in dispute meet with a neutral third-party (the mediator) to try to work out their differences and reach an agreement. The mediator facilitates discussion and negotiation but does not have any power to impose a decision.
Litigation is the formal court process where a judge hears evidence and arguments from both sides and makes legally binding decisions on the issues in dispute. The term litigation generally conjures up an image of a courtroom with lawyers, judges, and plaintiffs.
Something you might not know about litigation and mediation in family court.
The majority of family law cases never make it to a courtroom trial. In fact, it’s extremely rare. Almost all cases are resolved either through mediation or direct negotiation long before a judge is ever involved.
Why Mediation Is Becoming More Popular
Did you know that mediation is the method of choice for resolving family related disputes in approximately 69% of cases?
It has a significant resolution rate in most cases.
So why are so many people gravitating towards it in the face of divorce, children’s custody and visitation issues, child support, spousal support, paternity, protection orders, and other family law matters?
A lot of experienced family lawyers will tell you mediation should always be the first place a person starts the process of resolution when it comes to custody conflicts, property separation, and support orders.
Here is why that might be the case:
It is in your control. While with litigation a judge or some other external authority will make the decision; with mediation you get to craft your own plan.
It is a very quick process. The speed of the process may take weeks instead of months or years.
You will save a lot of money with it. This is the most expensive route to take if you go the traditional way by getting lawyers to fight over in court.
It is less stressful for everyone. The approach involves being cooperative, which is a lot less traumatic than being combative.
Your privacy is protected. If you opt for litigation, the process is made public. However, with mediation you are safe in the sense that your information remains private.
When Is Mediation The Right Path?
Mediation will never be the right path to resolution for every situation. At the same time, it will always be the best solution for the following:
- When both parties are able to communicate
- When there has not been domestic violence or abuse between the parties
- When both people want to continue to have some type of working relationship (very important when children are involved)
- When the legal and financial issues are not overly complex
- When both parties want to avoid a lengthy and expensive court battle
The vital element here is willingness to cooperate, as well as being open and available to communication.
How Does Litigation Work In Family Law Cases?
Litigation in a family law case is the traditional way that most people think of when they are expecting to “go to court”.
This is what happens:
One party will file a petition (divorce petition, for example) in court. The other person will be served with legal documents that must be responded to by a specific date. Both parties will then begin gathering evidence, taking depositions, and preparing their case for presentation in court.
If mediation does not occur, or if it does and an agreement cannot be reached, the matter will likely go to trial. At trial, a judge will hear arguments from both sides and make legally binding decisions on the disputed issues.
Here is the reality of how litigation in family law works.
Litigation is formal. Very formal. In fact, it is very rigid in its operation.
The Actual Benefits of Litigation
Litigation is not all that bad.
Contrary to the beliefs of most people who have a family law issue, there are circumstances where litigation in family matters is the best approach to take.
Legal enforcement. Litigation results in a court order when a judge makes decisions. This means there are real legal consequences when the terms of that order are not followed.
Legal guidance for complex situations. Sometimes there are complex financial issues or nuanced legal questions that require a judge’s intervention.
Power imbalance. If one party has significantly more resources, the litigation process allows for protective measures that mediation may not.
Unwillingness to negotiate. If one side refuses to engage in mediation, litigation is the only recourse.
How Much Does Each Process Cost
Money is very important.
It is in this area that the difference between mediation and litigation can be found to be the starkest.
Court cases involve hiring attorneys, paying for their services, court filing fees, expert witnesses, and multiple hearings over the course of many months.
All of this is extremely expensive. We are talking about a situation where you can easily spend tens of thousands of dollars.
Mediation is a fraction of that cost.
This is because you only have to pay for the mediator and the service is delivered within a period that is less compared to litigation.
The Emotional Cost Factor
This is something that is seldom discussed but is equally important:
The emotional impact of your decision is just as important as the financial impact.
Mediation encourages communication and collaboration. It’s designed to reduce conflict and help both parties move on with their lives.
Litigation is adversarial by nature. You are opposing parties in a legal contest. This can increase hostility and create long-term resentment.
Especially when kids are involved, the manner in which you both choose to deal with the issues matters.
How To Choose The Right Solution
So, what should you choose?
The best place to start is to answer the following questions:
- Are both parties willing to communicate and compromise?
- Has there been any domestic violence or abuse?
- How complex are the legal/financial issues?
- How soon do you need this resolved?
- What is your budget for legal fees?
- Do you wish to maintain a relationship with the other party in the future?
The answers to those questions will help point you in the right direction.
The best advice here is simple:
Talk to a family law attorney. A good lawyer will review your situation and help you determine the most appropriate path.
Hybrid Options Worth Considering
Here is the thing – you are not always required to choose one route.
In most cases the two approaches can actually be used together.
The situation can be opened with mediation. If the mediation process is successful, that’s it. However, if there are some unresolved matters, those can be forwarded to the courtroom for further handling while all other issues get resolved by mediation.
This is the situation in some states where mediation is mandatory before any issues can be heard in a courtroom. This is more the case when children are involved in any way.
Wrapping It All Up
Mediation and litigation are both useful in family law matters.
There is no “best” option in all situations.
Mediation offers speed, cost savings, privacy, and control. It is the right path forward when parties can communicate and want to avoid a court battle.
Litigation provides structure, legal enforcement, and protections for complex or high-conflict cases. Sometimes litigation is necessary.
The decision you make will impact your family for years to come. It is important to understand both options and seek legal advice. The choice you make should serve the best interests of your family.
