Divorce Mediation Vs. Litigation

The divorce process is never an easy experience, even for couples who have reached completely mutual decisions to divorce without any second thoughts. The formal steps required to end a marriage in the California family court system are more stressful and time-consuming than many people realize, and it’s vital to approach this situation armed with valuable information that will help you make informed decisions about your options. One of the most vital considerations you must make is how you should go about handling your divorce. You don’t necessarily need to prepare for a difficult court battle; alternative dispute resolution can potentially offer a more streamlined, less stressful, and ultimately less expensive divorce.

Alternative dispute resolution allows a divorcing couple to avoid the typical stress, expense, and time commitment divorce usually entails. Divorce mediation has quickly become the most popular form of alternative dispute resolution for divorcing couples throughout California, and it’s essential to consider the potential benefits this process may hold for you in your situation. It’s also necessary to understand what the divorce litigation process involves and how mediation can help you avoid much of the litigation divorce usually entails.

What Is Mediation?

Mediation, simply put, is essentially a private settlement negotiation for divorcing spouses. Instead of allowing their divorce to unfold entirely through the litigation process, divorcing spouses can meet privately with their respective attorneys and a neutral mediator to negotiate a divorce settlement. While this settlement must still align with California state laws, mediation allows divorcing spouses to maintain much more control over the outcomes of their divorce cases than litigation allows.

The only prerequisite for divorce mediation is that both spouses must be willing to try this process. A divorcing couple who cannot agree to anything may assume that they do not qualify for divorce mediation, but this is not necessarily true. While it may be more difficult, mediation is still possible for couples who cannot negotiate civilly with one another as long as they are willing to have their attorneys act as their proxies. Of course, this will take much longer than mediation when both spouses are willing to actively participate in negotiation, but it’s an option worth considering if you believe you and your spouse are too much at odds to handle mediation.

You and your spouse must select a neutral mediator to oversee your mediation sessions. This mediator should be an experienced California family law attorney who does not hold any conflicts of interest that would favor you or your spouse. The mediator is tasked with guiding negotiations and assisting the divorcing couple in drafting their divorce resolution.

How Might Mediation Fall Short of Producing a Divorce Agreement?

Mediation allows divorcing spouses to negotiate almost every aspect of their divorce item by item. Typically, mediation focuses on the financial aspects of a divorce, such as property division and alimony. If the divorcing couple has a prenuptial contract in place, their mediation process will likely revolve around reviewing the prenuptial agreement and determining whether it is still legally enforceable.

While most couples find that mediation allows them to maintain more control over the outcome of their divorces, the reality is that some issues cannot be resolved in divorce mediation. For example, while divorcing parents can develop a proposal for a parenting plan in mediation, they cannot come to any firm conclusions regarding child custody or child support in mediation. This is because the California family court system has a legal duty to ensure any divorce agreement that entails child custody and child support suits the best interests of the divorcing couple’s children.

There may also be other issues that a divorcing couple cannot negotiate in mediation. For example, if they are a high net worth couple and control complex assets, they may not know how to properly divide some of their marital property. However, one of the best aspects of divorce mediation is that it can essentially function on an a la carte basis; the divorcing spouses can settle what they can through mediation before moving to litigation to finalize the rest of their divorce.

Litigation Following Mediation

When divorce unfolds in court, the process is very similar to any other civil case. The two spouses will each have the right to offer evidence and testimony, call witnesses, and their respective attorneys may perform cross-examinations. However, the judge has the final say in the outcome of divorce litigation. Many divorcing individuals are surprised to learn that the judges overseeing their divorce cases interpret the facts of their cases very differently than they initially expected.

When litigation follows mediation, the proceedings are much easier for both spouses to handle. Ideally, mediation should produce a divorce agreement that requires a final review and approval from a California family court judge. The judge will examine the couple’s mediated divorce agreement, ensure it aligns with state laws, and implement it into a functional divorce order. However, if the couple could not address every aspect of their divorce in mediation, the judge would have to rule on the remaining issues. Ultimately, the time required to complete divorce litigation following mediation depends on how much the couple settles through their negotiations.

Legal Counsel for Your Divorce

Every divorce case is unique, and while a divorcing couple may have very complex issues they do not initially know how to address, it is almost always worth the time and effort to thoroughly investigate the potential benefits of divorce mediation. While litigation can take several months or even more than one year to complete, mediation can potentially conclude within several weeks or a month or two. This dramatically reduces legal fees for both spouses and can help them move on with their lives much faster and more easily. However, there is always a chance that a divorcing couple will need to proceed through the formal litigation process when they cannot cover all aspects of divorce through mediation.

Bickford, Blado & Botros offers comprehensive and compassionate legal representation to anyone facing divorce in the San Diego, CA, area. We understand that a divorce is a multifaceted, emotionally charged, and complex process that has the potential to influence your life in many ways for years to come. However, if you want to approach this complicated process with confidence, we can help. Contact us today to schedule a case evaluation and learn more about the potential benefits of alternative dispute resolution for your divorce.

 

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