Litigation vs. Mediation: To Punish or Not to Punish?

When considering divorce clients are usually familiar with going to court and fighting. More and more clients are learning there are more peaceful options. These days, during consultations clients ask more about the difference between “litigation” and “mediation”. Sometimes after answering their questions I ask, “Do you want to “punish” or “not to punish” your spouse?” Believe it or not, there are those spouses who only want to fight. They only see “red” and nothing is going to change that. But for those open to a non-adversarial option there is a more positive and peaceful solution – it’s mediation.

Both paths, litigation and mediation lead to a divorce, but the intention and the process are very different.

Which path will you choose?

Litigation:

Under the traditional system, imported from England originally, couples went to court to obtain a divorce.

Each spouse hires his or her own "advocate," and they engage in what is normally an adversarial process. The steps can include negotiation between the attorneys. If or when this is not working, there is always the threat of "going to court," where a judge will make decisions about all the issues, including custody and visitation, child support, spousal support, and the division of property.

The court process is particularly daunting. It includes serving a summons and complaint, an answer, and exchanging financial information and documents. This exchange is called "discovery," and it is, in fact, a way to find out the facts about the parties' finances. It can include subpoenas served on banks, businesses and third parties. It may also include applications made to the court for various types of relief, such as temporary child and spousal support, interim custody, and counsel fees.

Once you get locked into the system, it is extremely hard to find your way out. It is expensive, time-consuming, and emotionally draining. Ultimately, it may be the only vehicle for warring couples of a certain ilk. In some cases I call this the vehicle used to “punish”. This path is often attractive to spouses who want revenge, enjoy conflict, and seek to maintain control over the other spouse.

Mediation:

This path to divorce involves working with an unbiased mediator, usually a lawyer, whose function it is to assist a couple in a peaceful process, to make decisions together at and arrive at an agreement that is fair to both. For people who have never experienced it, mediation is surprisingly and stunningly effective. It is quick, inexpensive, and not adversarial. It is a three-part process, consisting of the negotiations, the preparation of an agreement, and preparation and submission of the divorce documents to a judge for signature.

In the last decade, mediation has become the popular choice of many divorcing couples, especially millennials. In fact, during the pandemic, while the courts have been closed, couples have been calling and asking me a lot about mediation.

It has been particularly difficult for disgruntled couples sheltering in place to continue in an already unhappy marriage. For some in abusive relationships, continuing to struggle in the marriage is no longer acceptable-life is just too short. I have actually had phone consultations with a spouse, while they were sitting in their closet at home for privacy, answering their questions about mediation. I have guided many of them on how to safely discuss divorce with their spouse, and how to introduce mediation as a positive, less expensive alternative to going to court.