Understanding the Differences Between Litigation and Mediation in the Divorce Process

Hi there,

As I meander around the Internet reading tweets and posts about divorce, I realize there is a great misunderstanding on the differences between litigated divorces and mediated divorces.  

Most divorces are resolved by negotiation of one kind Divorce mediation conferenceor another; in fact, very few divorces go to trial.  Mediation is simply a form of negotiation.  It is a more intense form, if you will, as there is a neutral third party who can keep the combatants on track.  For mediation to work there must be a level playing field, in terms of information, understanding and emotional equality between the divorcing spouses.

Generally litigation techniques (discovery, subpoenas and depositions) are necessary if one party has all the financial knowledge and the finances are complicated.

It makes a great deal of sense to engage in some limited discovery, including valuations, and then once all the cards are on the table, mediate.  Mediation can happen with or without the attorneys in the room, although sometimes it’s best to have the attorneys involved as that can temper emotional inequality.  The Courts strongly encourage it, but you need to know what the marital estate is before you begin.

Without mediation, most cases STILL settle.  The Court’s pretrial orders require the parties and attorneys to meet in what is called a four-way conference.  Good attorneys can often either settle the case then or narrow the issues so that, with some input from the judge at pretrial, the case gets resolved.

Best,

Nancy