Both divorce mediation and litigation end in the termination of a marriage — however, the processes are different, and the chosen dispute resolution method should end in a favorable outcome for both parties involved.
Divorce mediation gives both spouses more control, which can increase confidentiality and lower stress. It’s also a less formal and less expensive process that takes less time.
Meanwhile, divorce litigation is more structured, which increases discovery and protection. Couples also get legal representation and access to legal remedies.
Several things should factor into deciding which divorce process spouses should choose to resolve their issues.
These include cost, decision-making power, time commitment, and the protection of both spouses’ private information, among others.
What is Divorce Mediation?
Divorce mediation is an alternative dispute resolution (ADR) method that helps spouses reach an agreement outside the court.
It’s about “self-determination” since it’s a voluntary process where couples can make their own decisions about the divorce.
Judges in Florida highly encourage, and sometimes require, divorcing spouses to try divorce mediation before going to trial.
Couples can generally choose their own mediator even if the judge orders the mediation. If either party has a lawyer, they might know many mediators. Couples can also ask friends or colleagues for recommendations.
However, if the spouses don’t agree on a mediator within 10 days, the judge can assign one for them.
If one or both parties don’t show up at a required mediation session, the judge will impose sanctions.
However, a mediator can’t formally end a marriage. Instead, after a successful mediation, the court will need to finalize the divorce.
Mediation might feel similar to a collaborative divorce process, also called “collaborative divorce” or “collaborative process”, which is another alternative dispute resolution method.
However, it’s different because, in a collaborative divorce process, spouses and lawyers hold conferences to resolve problems. No mediators are involved.
The collaborative process can be thought of as a mix of litigation and mediation.
What Are the Advantages of Divorce Mediation?
The divorce mediation process tends to be very flexible since it relies on mutual decisions from both parties to resolve issues.
The following are examples of the advantages of mediation over divorce litigation.
- Increases Control
- Reduces Formality
- Reduces Time
- Less Expensive
- Increases Confidentiality
- Reduces Emotional Stress
Divorce mediation gives couples a high level of control over their divorce agreement, which can be customized to each party’s needs. That’s because both parties have direct input regarding what goes into the terms and conditions.
The process can take place privately or online with a divorce mediator. No court filing is required to start mediation.
However, a mediator will only attempt to help the couple reach a compromise. Mediators will also normally create a marital settlement agreement.
A mediator won’t decide the outcome of the divorce. Instead, in the case of a successful mediation, a court will still need to review the settlement agreement before issuing a final divorce decree.
In contrast to mediation, litigation gives divorcing parties less control because it takes place in a court. A judge will be the one who ultimately decides the outcome of the process — from parenting time to the division of marital assets.
Divorce mediation takes place in a relatively informal and non-confrontational setting, such as the office of a divorce mediator or an online video call. This allows for a more open discussion of divorce issues.
Couples can outline the terms of their agreement themselves. A mediator is present to help both parties identify, negotiate, and come to mutually acceptable conditions on matters required to resolve a divorce outside of court.
In contrast to mediation, litigation is more formal because it takes place within a court presided by a judge. This entails a legal process that follows a strict procedure and timeline, which includes presenting evidence and making legal arguments.
A divorce mediation can take 2-6 months to complete. This translates to around 2 to 4 mediated sessions, although the speed of the process largely depends on the spouses.
All communication takes place in real-time, so any issues involved can be addressed immediately.
In contrast to mediation, litigation takes longer because it adheres to a strict process and timeline. The basic steps for this process include:
- The petitioner files a dissolution petition and serves the other spouse with divorce papers.
- Respondent answers the petition within 20 days.
- Depending on the circumstances, both spouses might need to file a “Family Law Financial Affidavit.”
- Couples with minor children should complete a Parent Education and Family Stabilization Course before the final hearing.
- Attend the final hearing.
Contested divorces can take 6 months to more than a year, depending on how complex the case is.
That’s because issues like child custody, spousal support (alimony), and property and debts will need to be settled.
However, an uncontested divorce in litigation might take a shorter time.
On top of that, divorce litigation has a back-and-forth nature of communications between opposing counsel.
Each party will need to talk with their own lawyer about a topic of disagreement. Then, that lawyer will write a letter to the other side and wait for a response.
Divorce mediation can cost anywhere between $3,000-$10,000.
Ultimately, the cost depends on several factors like the following.
- Whether the couples are undergoing private or court-connected mediation
- The couple’s combined annual income (for court-connected mediation)
- Rate and background of the divorce mediator (whether they’re attorney or non-attorney mediators)
- The complexity of unresolved issues in the case
Couples may also need to hire other professionals during the mediation process. For instance, an appraiser might have to assess the value of a property.
Divorce mediation is generally less expensive than a litigated divorce because couples are technically working on their settlement agreement themselves. However, they’re doing so in the presence of a divorce mediator to help resolve problems.
Meanwhile, traditional divorce litigation can range from $20,000 to $200,000 — depending on whether the case goes to trial in court or not.
Simply filing for divorce in Florida courts already costs around $400. There’s also a small administrative fee. Aside from court costs, perhaps the most expensive part of a litigated divorce is hiring attorneys.
These professionals will be paid for court appearances and other work outside the courtroom. These include giving legal advice and guidance and generally helping couples navigate the trial.
The longer the divorce process continues, the higher the fees generated for the lawyer.
Couples will also need to pay for professionals they’ve hired to appear in court to provide testimonials. For instance, an actuary might be asked to compute the distributable amount of a pension plan.
The divorce mediation process is done in a private, confidential environment — usually a mediator’s office. This means any decisions between couples and a mediator will remain private.
On top of that, the divorce process can be hard on couples emotionally, so any emotional conversations that happen during a mediation session will stay private.
In contrast to mediation, litigation offers less confidentiality because it’s a matter of public record. Everything, including personal details, about the case will be available through that public record, which can be viewed by anyone.
Reduces Emotional Stress
Mediated divorces are non-adversarial and cooperative, so it’s more peaceful. Because of that, couples can hire a neutral mediator to help them create a settlement agreement.
Spouses both have a direct say in outlining the terms and conditions of their agreement. Mediation takes place in a less formal environment as well, which puts more control in the couple’s hands.
Meanwhile, litigated divorce is attorney-driven, making it an extremely adversarial process that may not be peaceful and lasts a long time.
A divorce lawyer might use strategies to confuse, manipulate, or outsmart the opposition. Some of them can even be hostile and unreasonable, which can cause stress to both parties.
Divorce litigation is also risky since there’s no guarantee which side of an issue a judge will rule in favor of. The judge may demand documents, witnesses, or outside experts be brought into court.
The longer the process continues, the more taxing it can be for both parties. Even after all that, couples might not be satisfied with the ruling of their divorce matter in the end.
Attorney Mediator vs Non-Attorney Mediator
Divorce mediators can either be attorneys or non-attorney mediators.
Many mediators are attorney mediators who have training in mediation while also having credentials and experience in family law. They might be a divorce attorney or retired judge.
Either way, these professionals are great options since they have an enhanced knowledge of divorce law. They have a broad understanding of the underlying needs of both parties, so they’re able to guide the couple to solutions.
Despite being a lawyer or retired judge, an attorney mediator is still not allowed to give legal advice or act as a lawyer for either party if the supposedly uncontested divorce goes to court.
But despite having a good grasp of divorce law, they may or may not be an effectively neutral third party due to their experiences as a lawyer. That’s because it might be hard to undo what law school has taught them — which is to advocate for their side.
These professionals also charge higher rates than non-attorney mediators.
Meanwhile, non-attorney mediators may not be lawyers with an excellent grasp of divorce law, but they have experience and training in mediation.
They charge significantly less than their counterparts but tend to have other relevant credentials. These can include being a divorce financial analyst, mental health professional, or family and marriage therapist.
Because they weren’t trained in law school, these kinds of mediators are more capable of being a neutral third party that’s more focused on open communication to resolve issues.
However, these professionals are more open to creative solutions to reach an agreement. Because of that, some clients might feel like they were taken advantage of or gave away too much during mediated sessions.
As such, couples who know their legal rights or have attorneys helping them prepare documents are ideal clients for non-attorney mediators.
What Is a Litigated Divorce?
A litigated divorce is a contested divorce that takes place in a court.
This process is more combative by nature since spouses can’t agree on how to resolve issues. Because of that, one party files a complaint with the court.
Two lawyers are generally hired to represent each spouse. Couples may choose to represent themselves, but a divorce lawyer can better help them navigate the trials.
Couples can settle at any time during a divorce litigation. If spouses reach an agreement, their case will be converted to an uncontested divorce.
What Are the Advantages of a Litigated Divorce?
Divorce litigation follows timetables set by courts, and there are only a limited number of family courts, so it can take a longer time to finalize the process.
However, the following are examples of the advantages of divorce litigation over mediation.
- Increases Legal Representation
- Enhances Discovery
- Increases Structure
- Increases Protection
- Increases Access to Legal Remedies
Increases Legal Representation
Couples can represent themselves during trials. However, this is only practical in an uncontested divorce case or when a spouse has no minor or dependent children and few assets.
In every other situation, a divorce lawyer is very helpful since they know all the intricacies of the divorce laws and the ins and outs of the court system.
Each lawyer represents one party, which they’ll be advocating for. These professionals will provide legal advice and guidance and argue on their client’s behalf.
Discovery is the process of presenting information to the other party.
This is a formal process in litigated divorce — and information that may be required includes financial information, real estate documents, tax returns, business records, and other documents or records that can be used in the trial.
Formal discovery is the best way to get all the information needed to ensure a fair and equitable distribution of assets.
Mediated divorces don’t have this process since all documents and information are exchanged on an informal basis. That means they’re not given under oath, so a spouse might be lying or hiding assets.
As such, a divorce attorney will usually advise undergoing a formal discovery. That’s because lying or hiding assets under oath is subject to the criminal penalty of perjury.
Litigated divorce follows a structure in the courtroom. The steps ensure that nothing is missed out.
Mediated divorce is typically controlled by the spouses, with divorce mediators only trying to help direct the conversations. This means that some aspects of the divorce might not be given as much focus or skipped altogether if the couples don’t bring it up.
The basic steps to a litigated divorce process include the following.
- Filing and answering of divorce petitions.
- In Florida, couples are required to complete the Parent Education and Family Stabilization Course, which teaches spouses how to deal with the consequences of divorce on parents and children.
- Addressing temporary matters, such as child support and establishing temporary alimony for one spouse during the pendency of the litigation.
- Discovery process for documents, depositions, interrogatories, and expert witnesses.
- Depending on the couples’ county, they may be required to undergo mediation before proceeding to court.
- If the mediation isn’t successful, either spouse can file a Notice of Trial. Normally, the court will call on both lawyers for pre-trial conferences where details (like the date of trial and amount of time needed for trial) are discussed.
- The trial proper, where the judge listens to all parties and evaluates all the presented evidence.
- The final judgment, along with other settlement agreements, outlines the terms of the divorce and the rights and responsibilities of each party.
Mediation requires a level playing field — so if either spouse has the upper hand, it’s better to get a litigated divorce.
An abusive, narcissistic, or deceitful spouse will destroy any chance of a productive mediation. This is especially true if said spouse already has a lawyer or is legally claiming that the other party is at fault for the divorce.
If that’s the case, a professional advocate in the form of a divorce attorney can ensure that the weaker spouse gets their fair and equitable share of assets.
Increases Access to Legal Remedies
After the judge passes the final judgment, it’s possible to have post-divorce litigation to enforce or modify any judgments previously made in divorce proceedings.
Some post-divorce legal issues include:
- Enforcement of orders
- Modification of custody orders
- Modification of child support
- Modification of spousal support
- Inheritance through a will
- Issues associated with estate planning and wills
- Remarriage (since the legal effects of remarriage can affect things like child support and child visitation)
When is Divorce Mediation a Better Solution Than Traditional Litigation?
There are times when divorce mediation is better than divorce litigation. Below are some ideal scenarios.
- When Parties are Amicable: Both spouses might be willing to talk through issues for a more peaceful divorce. As such, a mediator can simply help them reach a compromise.
- When Costs Are a Concern: Hiring a divorce mediator (especially a non-attorney mediator) is significantly cheaper compared to the fees for attorneys, court use, and court appearances.
- When Confidentiality is a Priority: Mediation happens in a private environment, so any decisions and emotional conversations will stay between the couple and the mediator.
- When Parties Wish to Preserve the Relationship: Mediation has a non-combative nature, and talking out the issues won’t put a strain on the relationship.
- When Parties Have Specialized Needs: Mediation allows a divorcing couple to outline the terms of their settlement agreement themselves — from child custody to division of property. This allows couples to do what they believe is best for their children.
When is Litigation a Better Solution Than Divorce Mediation?
Meanwhile, there are also times when a litigated divorce is better than mediation, like these scenarios.
- When High Conflict is Likely: Either spouse might have a personality that’s driven to conflict, or both spouses are likely to argue rather than talk things out. If so, litigated divorce might be better.
- When Parties Are Non-Cooperative: Parties might not be willing to attempt mediation. In this situation, leaving the judgment to a court may be the better option.
- When Legal Issues Are Complex: Disputes like business valuation, non-marital property and inheritances, hidden income and assets, and more can make it hard to reach a divorce agreement. So, a litigated divorce can result in the best possible outcome regarding the division of assets.
- When There is a Power Imbalance Between Parties: A power imbalance can shift the entire process in one spouse’s favor if the couple undergoes mediation. However, a lawyer can protect the weaker spouse by representing them and their best interests in court.
- When Enforceability Is a Priority: Enforcing the terms of the settlement agreement can be easier with litigated divorce since it’s possible to have post-divorce litigation if one party violates a prior order of the court.