How to Avoid Divorce Litigation

Going through a marital breakup is never easy, especially when a divorce proceeding becomes highly contentious. If disputes arise over key issues such as dividing marital assets or child custody and visitation, the court battle could become lengthy and expensive. For couples who wish to avoid the emotional and financial fall out of a highly-contested divorce, there are alternatives such as divorce mediation and collaborative divorce. While both approaches are more civil and less expensive than a litigated divorce, there are important differences, which makes it essential to have the advice and guidance of an experienced family law attorney.

What is divorce mediation?

Put simply, divorce mediation is a form of alternative dispute resolution. While divorce litigation involves a lengthy discovery period, court filings and appearances, a typical mediation usually requires 3 to 6 sessions for the parties to reach an agreement. Rather than litigating the case in court, the parties hire a neutral mediator to resolve the key issues. The mediator’s role is not to make any decisions but rather to guide the proceedings. Moreover, the mediator cannot give either party legal advice, even though mediators are often licensed attorneys.

For divorce mediation to be successful, however, both spouses must agree to participate and be able to negotiate in good faith. Rather than having a bitter dispute, the parties are encouraged to engage in an open and honest dialogue based on empathy and understanding. In so doing, the spouses have the opportunity to continue raising their children properly and mitigate the harm children often experience when parents part ways. If the spouses are able to cooperate, they have an opportunity to resolve the matter. 

It is important to note that divorce attorneys cannot participate directly in the mediation process and the parties must come to an agreement independently. The parties can seek the advice of an attorney, however, to ensure that their rights are protected. Finally, if divorce mediation is not successful, then court intervention will become necessary. 

How is mediation different from collaborative divorce?

A collaborative divorce is another form of alternative dispute resolution. Unlike mediation, each party’s attorneys participate directly in the negotiations. The spouses and attorneys must agree not to seek court intervention and work to reach a settlement. If an agreement is not reached and litigation becomes necessary, the parties must hire new attorneys. Rather than relying on a mediator, a collaborative divorce enlists the services of experts such as financial professionals and child psychologists to resolve the key issues. Ultimately, a collaborative divorce is well-suited for those who wish to continue raising their children and can remain on amicable terms.

Why This Matters

Given the fact that a litigated divorce can become an emotional and financial burden, divorce mediation and collaborative divorce provide couples with a way to end their marriages amicably and avoid the legal expenses of going to trial. Regardless of the forum, the best way to protect your interests in a divorce is to consult an experienced family law attorney.