Litigation vs. Mediation: What's the Difference?

Many people don't realize that they have a choice about how their divorce or other family law matter will be resolved. Not all divorces are handled in a courtroom, and not all decisions are made by a judge. Although litigation—essentially, a lawsuit—is the right choice for resolving some divorces and family law disputes, mediation is an increasingly popular choice. Here's some information about the two options.

What Happens in Litigation and Mediation?

Litigation begins when one party files documents initiating a lawsuit. The other party is served with these documents and has the opportunity to file an answer to them.In litigation, each person is represented by attorney; an additional attorney may be appointed to represent the children's interests.

Positions are identified, developed, and negotiated by and through the parties’ attorneys, based on past events and occurrences. Data and information about the parties' finances and conduct is gathered through a process called discovery, which is initiated and managed by the attorneys. Discovery may be formal, such as a deposition, or informal, such as a voluntary exchange of financial documents.

The parties, through their attorneys, will try to reach agreement about the terms of the divorce or other family law matter. If there is agreement, the attorneys will draft a Marital Settlement and/or Parenting Agreement for approval and entry by the court. If no agreement is reached, then matter will be decided by a judge after the discovery phase and a hearing or trial.

In mediation, the parties meet with a neutral, the mediator, who does not represent either party, but works to facilitate an understanding of each party’s position on various matters and lead the parties to a negotiated agreement on each issue. The mediator does not make a decision or force agreement.

Current and future needs, interests and concerns are identified and negotiated directly by the parties, and facilitated by the mediator. At each stage, and at the conclusion of the mediation, each party is encouraged to review agreements reached with their attorneys.

Data and information is gathered by voluntary disclosure to the mediator by the parties and shared with the parties’ respective attorneys upon authorization; outside professionals, such as accountants, specialized attorneys, therapists and the like may be consulted with as needed.

If the parties reach agreement, the mediator will draw up a Memorandum of Agreement, which will be forwarded to the parties' attorneys, who will use it to prepare a Marital Settlement and/or Parenting Agreement. If the parties reach only partial agreement, or no agreement, unresolved matters will be decided by the judge after discovery and hearing or trial.

Confidentiality in Litigation vs. Mediation

In litigation, matters revealed to counsel are confidential, but documents and data are subject to discovery. Everything set forth in pleadings and court documents is a public record (absent documents or pleadings sealed by the court in special circumstances and excluded by statute to protect identity).

Matters revealed in mediation, on the other hand, are completely confidential; the mediator cannot be subpoenaed as a witness or be made subject to the discovery process. All documents are returned to the parties upon conclusion of the mediation or destroyed.

The Cost of Litigation vs. Mediation

In litigation, there is greater attorney involvement, including multiple court appearances. There are also typically higher discovery costs, especially with formal discovery. There also exists the potential for further litigation and expense if problems arise in the future, such as the need to interpret or enforce court orders.

In addition to these financial costs, there are the emotional costs of litigation. Fighting is stressful and erodes the goodwill needed to co-parent in this "win-lose" model. Even very young children are sensitive to the hostility that often is present in a litigated divorce.

The financial and emotional cost of mediation is typically lower. There is one mediator who coordinates with the parties' attorneys, who have much less involvement than in litigation. There are generally fewer court appearances, and lower discovery costs due to voluntary disclosure. As a bonus, the very process of mediation encourages the parties to reach mutually agreeable, cooperative solutions and to adopt a "win-win" mentality. This fosters communication and negotiation skills which can be used to solve future conflicts without going to court. Because the process is more cooperative and less combative, there is a lower emotional cost as well.

To learn more about litigation and mediation in family law matters, we invite you to contact the Law Office of Elizabeth Lidd Factor, P.C.