Mediation vs. Litigation: A Comparison
Most people do not fully understand the drastic differences between divorce mediation and litigation. There are so many factors at play ranging from the cost of the process to the emotional impact that the process will have on you and your family. In this article, we will illustrate the differences between divorce mediation to help you make an informed decision about what is right for you. Remember, the choice you make regarding how you handle your divorce will have a long-term impact on your life. Please allow this article to help inform your decision.
What is mediation?
Divorce mediation is a process where you and your spouse sit down with a neutral-third party divorce mediator to divide the assets and debts of your marriage without going to court. You can also decide things such as child custody, child support, and spousal support. Your divorce mediator will help to moderate your conversation, facilitate open communication by creating a safe space in which to speak, inform you of the law, and provide you with options. The result? You will have a comprehensive and customized divorce agreement that is legally binding without the cost or headache associated with going to court.
What is litigation?
Litigation is a process where each spouse hires a separate attorney to represent his or her individual interests in a court room. The judge makes decisions for the spouses regarding property division, child custody, and support.
Cost, cost, cost:
One of the most common questions connected to divorce is “what will this whole thing cost?” Here is the truth about the costs associated with divorce.
Mediation – Although some mediators bill by the hour, it has become common practice for divorce mediators to charge a fixed, flat fee for the entire divorce mediation process. At Alternative Divorce Solutions, we offer a variety of flat fee packages for our clients and will assess the complexity of the case to determine which one is right for our clients. Then, everything is included within this fee. This means that filing fees, court costs, paperwork, and all communication is covered. After we have done a case assessment at your free consultation, you will never again have to ask “what will this whole thing cost?” because it will be laid out for you, clearly. This removes some uncertainty from what can otherwise be a scary time in your life.
Litigation – Divorce attorneys bill by the hour. In Orange County, the average attorney’s hourly rate is approximately $350, but can be as high as $600 or more. Typically, when a client signs up with a divorce attorney to get a divorce, they pay something called a “retainer fee”. This fee usually ranges between $5,000 - $15,000 per person and serves the purpose of securing an attorney to represent you. In divorce, the attorney begins to bill against this retainer fee immediately. Every court filing, e-mail, phone call, meeting, and court appearance gets billed for. As you can probably imagine, that retainer fee gets eaten through very quickly, with no end in sight, and needs to be replenished. Keep in mind, that each person must hire an attorney to represent them in the litigation process. This means that each person will need to spend $5,000 - $15,000 before they even start their divorce.
What’s worse is that, sadly, the attorneys representing the clients have an inherent conflict of interest. That is, if they settle the divorce or finish it, they are no longer making money. So, aside from the kindness in their own hearts (yeah right), what incentives do they have to stop the bleeding? None!
Mediation – In California, there is a 6 month, 1 day waiting period that is in place by operation of law regardless of how you choose to complete your divorce. Specifically, once a person files for divorce and the other spouse is served with the divorce paperwork, a time period of 6 months and 1 day must pass before the court changes your status from married to divorced. The rationale behind this law is that it gives couples an opportunity to reconcile before their divorce is finalized. In fact, it is often referred to as the “cooling off” period and is in place to protect people from decisions made in haste (and often anger).
Mediation, however, usually moves much faster than the timeline that California has set for divorce to take place. The typical divorce mediation takes place on about a sixty day timeline. Let me explain. If a client hires us at the conclusion of their free consultation, we prepare the divorce filing right away. Then, we take care of serving the divorce papers at mediation session #1. The mediation sessions take place about one week apart from each other, unless the couple wants to delay that for personal reasons. With our average mediation taking about 3 meetings, that’s about a four week timeline. Add our drafting of the final documents, along with the client’s review of those documents, and we are at about 60 days!!!
Yes! You can be done with your divorce proceedings that fast. So, what do we do about the CA timeline? We mark your divorce date in your final papers and file them with the court. Then, the court gives you your divorce automatically, no additional action is required.
Litigation – As you can imagine, with tens of thousands of divorces happening each year in Orange County, CA alone, the court system is extremely bogged down. This means it can take weeks and even months to get a court date on calendar to resolve even the most basic of issues. So, the long answer on how long a litigated divorce takes is “it depends.” On what? It depends on how complex your case is, how many issues are involved, the level of contention, how motivated your attorney is to file things quickly and prepare for hearings, whether your spouse hires an attorney right away, whether you and/or your spouse stay with the attorney(s) you originally hired, the judge you get, the weather, and pretty much any other unknown. The short answer is, “you never know.” The very nature of litigation is uncertainty. You don’t know how much it will cost, or how long it will take. Welcome to the great unknown of the CA court system.
Control Over the Outcome:
Mediation – In mediation, you and your spouse are in complete control of the outcome. You are making your own decisions with the guidance of your divorce mediator. To facilitate this decision-making process, you mediator can provide you legal information and refer you to qualified professionals if expert advice is needed. It is always a look before you leap approach to ensure that the couple goes into each choice with their eyes wide open.
Litigation – If you are in court, it means that you and your spouse could not make agreements on how your assets and debts would be divided, or how you will share time with your minor children. Therefore, your attorneys will present your respective cases to a judge, who will have the final say.
Emotional Impact on the Parties and Those Connected to Them:
The emotional impact of divorce is best described by a concept we have coined as the “ripple effect of divorce.” Divorce doesn’t just impact the people going through it. It touches everyone in contact with those people, and seeps into every aspect of the couple’s life. This means that work performance, friendships, and even family ties can suffer. Also, how parents choose to handle their divorce creates a model for how their children may believe conflict should be handled. Children do as we do not as we say. If we show our children that fighting and a loss of control is the only possibility for handling conflict, they will not act any differently. This can impact their lives, and the lives of their future spouse and children. Thus, the impact of one couple’s divorce can go on for generations to come.
Before you choose to divorce, think about the consequences, which are not merely financial. They are consequences for your family, and for society. Choose a better divorce.