19 Jan Mediation vs. Court for Divorce: Pros and Cons
When a marriage is over, divorcing couples must agree to the terms that will govern their post-divorce lives. These include property division, child custody and support, and alimony (spousal support). Some couples can work together amicably to come to terms on these issues, while others dig in and get stuck on issues and refuse to compromise.
Mediation is a process that helps divorcing couples reach an agreement acceptable to both parties using an experienced mediator. In mediation, an impartial third party, who may be a retired judge, an experienced divorce lawyer, or a court-approved mediator, works with both spouses to reach an agreeable compromise and settlement of the terms of a divorce. But before you select mediation as the way to reach a divorce settlement, consider the pros and cons of choosing mediation over going straight to litigation in court.
Advantages of mediation include:
- Cost: Mediation is usually less costly than going to court. It is advisable, but not necessary, to have an attorney representing you during mediation. But even with a lawyer, there will be fewer billable hours and fewer documents to be prepared and filed. The more issues you are able to resolve in mediation, the less expensive trial or court action may be.
- Time: Mediation can be much faster than going to court. Courts have crowded dockets. When you file for divorce in court, you get in line with other family matters, including domestic violence, child emancipation petitions, paternity disputes, adoptions, and guardianship matters. In mediation, the parties agree to use a mediator and set a date for mediation, at which time settlement may be reached. This is often much faster than waiting for a trial date.
- Informality: Mediation can be less stressful than going to court because the parties can present their positions in their own words and speak directly to the mediator to state their concerns, unlike speaking to a judge through an attorney.
- Non-binding: When a court hands down a divorce decree, it is final and non-negotiable. But with mediation, you are not required to agree to anything. You can refuse to sign off and proceed to court to have your lawyer present your case. However, if you do sign an agreement, then you will be bound to follow it. If circumstances change, you can return to the mediator you used in your case to resolve issues that may have arisen.
There are downsides to mediation. These include:
- It will not work for some couples: Mediation can be doomed to fail if one or the other spouse is vindicative or refuses to cooperate. Mediation requires a good faith effort to come to an agreement, which involves communication and compromise on both sides. If one spouse is irretrievably dug in, mediation cannot work and may not be a good use of your time and money.
- Deception: Mediators do not have the power to order spouses to produce information or to make investigations. In mediation, a deceptive spouse who is hiding assets or making false claims about the other spouse is not subject to court orders or the discovery process. So it is important to be prepared at mediation because if you are not, then you may agree to something that you would not have if you had had all the information.
- Mediators do not provide legal advice: A mediator is there solely to help the parties agree on their issues, not to advise one or the other spouse about what outcome is in their best interest. You will still need to pay a lawyer for that, and if you and your spouse cannot agree, you will end up in court anyway.
Divorce lawyers in Washington State can help you reach the best outcome for you in a divorce. They can use court processes to compel non-cooperative spouses to produce information, and they can even provide investigations to reveal if a spouse is hiding information or making false claims. If your relationship with your spouse is acrimonious, and you cannot communicate civilly, mediation may not work for you.