How to Get Divorced: Mediation, Litigation, or a Combination?
In a happier world, most marriages would be full of mutual love, respect, and competent communication – and they would last until death intervened. In the USA at this time, about half of marriages end in divorce.
When it comes to divorce, some people need an attorney who is a fighter and some people need an attorney who is a good negotiator. Others need nothing more than a little advice from an attorney. They can do their own negotiating with the help of a certified family mediator.
Yes, This is Really Happening.
So, imagine that you and your spouse have reached the point where you know divorce is inevitable. Maybe you tried couples counseling first, but it did not work. Maybe one spouse doesn’t even want the divorce, but it is going to happen anyway. Now what? Are you going to give thousands and thousands of dollars to attorneys to help you fight with each other, or are you going to try to keep your parting as amicable as possible?
There is so much to think about. For example – right around the time of separation, if a couple has minor children, they will need to decide what to do about custody, visitation, short-term spousal support, and child support. Then or later a couple will also need to decide what to do about dividing their assets and debts and whether either will pay long-term spousal support.
For some couples, mediation is the best approach.
Mediators & Mediation
A Mediator is an expert in facilitating negotiations. A mediator can help people stay calm or regain enough composure to negotiate constructively, speak up about what matters to them, hear what matters to the other party, brainstorm ways to resolve issues, and develop agreements.
When you are looking for a mediator to help you resolve family issues, look for a Certified Family Mediator. Most states have training and mentorship programs a person must complete to become a Certified Family Mediator. Certification is evidence that a mediator has had training in family law, has worked with a mentor, and has enough experience to be trusted. In this profession, as in any other, degrees of competence vary and areas of specialization vary, but certification is a good start.
The family mediator will ordinarily advise each party to confer with an attorney so that they know their rights, responsibilities, and risks. Then, in a private and confidential setting, the mediator will help the parties work out the terms of their separation and/or their divorce.
With a little education, many couples can resolve several questions on their own. For example, it may be obvious to one couple that the kids should spend one week living at mom’s house and the next week living at dad’s house. This works for them logistically because they live relatively close to each other and they reside in the same school district. They also share the view that the kids love and need both parents. For another couple, it may be obvious to both parties that their child should continue to live with the parent who has been the primary caregiver for his whole life; however, he should also spend time with the other parent at least twice a week so that the bond with the noncustodial parent remains strong.
I often advise clients to work out the easy issues on their own and then use mediation sessions to discuss the things that are more of a challenge.
The mediator’s role is to help the parties communicate what matters to each and why, hear what matters to the other party and why, focus on one issue at a time, brainstorm ideas about how they could resolve issues, and negotiate constructively to develop a plan that each party can agree to. The parties – not a stranger in a black robe – make the decisions about how to restructure their family and divide their assets and debts. They are working together to develop their plan, so they are building a good foundation for co-parenting during the years to come. It is their plan, so they are likely to follow through and do what they agreed to do. Compliance with court orders is less reliable.
Key Points to Consider
The key benefits with mediation involve time, money, and psychological well-being.
Mediation versus Litigation at a Glance
Time to Resolution
Mediation is usually much faster than litigation. Couples often resolve all issues in just two or three mediation sessions over the course of two to eight weeks. They can finalize their agreement about the terms of their separation and their future divorce with notarized signatures even before one moves out of the marital home.
Litigation involves more steps: Someone files a petition. A copy must be properly served to the other party. Then the court sets a date for a first hearing. If the court has two hundred other cases already in the system, weeks or even months may pass before the first hearing happens. To prepare for the first hearing, the lawyers demand written answers to formal interrogatories and require the parties to produce relevant documents. The first hearing is often a short one at which the judge may issue a temporary order about custody, visitation, and/or support. One party may file an appeal about the temporary order, and there will be another hearing. After more months go by, if the parties have not worked out a settlement, there may be a trial at which a judge is willing to listen to evidence and arguments for 3 to 8 hours (or more in a highly contentious case). This hearing may produce a “final” order about some or all issues. Again, one or both parties may file an appeal. If any issues remain unresolved, there may be another hearing weeks or months later.
When I got divorced, one of us filed the first petition in June but our first hearing was in November. I lost count of how many interim hearings and settlement conferences we had. We had our final divorce hearing eighteen months after filing the case and then we waited weeks for the divorce order. Litigation was slow and painful.
Many mediators charge much lower hourly fees than attorneys do, and the work gets done in far fewer hours. The usual result is that the couple gets to keep much more of their money somewhere in the family. Litigated divorces often take more than a year, and each party may pay anywhere from twenty thousand to one hundred thousand dollars to his or her attorney. Many ex-couples can develop a mediated parenting plan (custody, visitation, etc.) and property settlement agreement in two to four weeks at a cost under $1500. I know of one couple with three minor children who did all of it for less than $500.
For many people, separation and divorce involve intense waves of grief, rage, anxiety, and pain. Litigation is a hostile process, so it often makes people more angry, more frightened, more defensive, and more depressed. Mediation is not always cooperative. The parties sometimes remain very angry, but at least mediation does not add fuel to the fire. Sometimes mediation includes elements that contribute to gradual emotional healing.
A lawyer’s job is to advocate for their client’s interests, so in a litigated divorce, there may be no one representing the child’s (or children’s) best interests. A family mediator is required to stay neutral between the parents but is allowed to help them think about how the plans they are making will affect their children.
With mediation, you and your ex-partner have control over the outcome. Nothing goes into your written agreement unless both parties authorize its inclusion. The result may not be a jubilant win-win that sends everyone home happy, but it will be a plan that both parties think is workable and acceptable. There is no stranger in a black robe telling you how to run your family.
Even though mediation saves time, money, and sanity in big ways, it is not the best process for every couple. An obvious example of a case that would not be appropriate for mediation is one that involves an ongoing threat of domestic violence. The abuser may have the power to intimidate the other party into agreeing to a plan that does not accommodate his or her needs adequately. An attorney is needed to defend the abused party’s interests.
Mediation may not be appropriate if one spouse emotionally checked out of the marriage a long time ago and the other is surprised by the demand for divorce and is still coping with feelings of grief for the loss of the partner, the marriage, or the family unit. Some people can make informed decisions despite emotional chaos, while others are so overwhelmed by emotions that they need an attorney to represent their interests.
If one party is so impaired by their abuse of alcohol or other drugs that he or she cannot make rational decisions, the case may not be appropriate for mediation. The same applies if an untreated mental illness impairs one party’s ability to make good decisions or to stand up for himself or herself. Finally, if one party is highly manipulative, the other party may need an attorney to protect his or her interests.
Mediation will not work if one party refuses to participate in good faith. If someone is so angry that he or she wants to spend $50,000 or $100,000 punishing an ex-partner, that person is not likely to let mediation succeed.
Finally, if the parties are each convinced that the judge will see everything their way, they may need to live through one or two costly court hearings. When their expectations become more realistic, they may be ready for mediation. The usual outcome of litigation is that both parties feel as if they have lost, despite the large sums of money they paid their attorneys, each of whom may have expected to win the case.
Fortunately for the parties and their children, many couples are able to use mediation to develop written agreements about custody, visitation, spousal support, child support, and property distribution. I have read that many divorcing couples file pro se, which suggests that many are making good use of mediation services. Many more couples could probably benefit from family mediation if only they knew the profession existed. Tell your friends! Tell them to tell their friends! The world will be a better place.
If Mediation is Not for You
If you conclude that mediation is not appropriate for your situation, you have choices about how to use an attorney’s services:
You are allowed to pay an attorney for advice and then speak for yourself in the court room. Parents with limited financial resources often take this path when they need the court to rule on custody, visitation, and/or support.
You can interview a few attorneys and retain one to negotiate on your behalf. The goal from the beginning is for your lawyer and your spouse’s lawyer to negotiate an acceptable settlement of your case. The approach is inherently somewhat adversarial because the attorneys represent competing interests, but the approach is also somewhat cooperative because the lawyers are trying to help the parties resolve issues and agree on the terms of their divorce.
If your ex-partner is a bully who is determined to push for an outcome that you believe would be unfair to you and/or detrimental to your children and he or she is unwilling to compromise, then you may need to retain a lawyer who specializes in fighting like a tiger. A fairly low percentage of divorce cases actually go to trial, but if that is where you are headed you will need a vigorous advocate. Litigation is ugly and expensive but sometimes necessary.
Thinking it Through
Listed in order from least expensive to most expensive, the ways to work out the terms of your divorce are:
- mediation, possibly with some advice from attorneys along the way
- getting advice from attorneys but speaking for yourself in court
- hiring lawyers to negotiate an acceptable settlement
- adversarial litigation with the expectation of going to trial
If the various approaches were listed from most cooperative to most adversarial and coercive, the middle two would trade places.
You might be wondering whether this article is biased because I am a certified Family Mediator. In my case, the causality goes in the other direction. I became a Family Mediator because my own divorce showed me how long and how distressing litigation is. I saw the long-lasting damage it did to my children and to me. If there is a chance that mediation might help an ex-couple resolve at least some of their issues, I highly recommend that the parties try the process. Whatever does not get resolved in mediation can later be addressed in court.
This article is for information only. Nothing in it should be construed as legal advice.
|1.||CDC FastStats – Marriage and Divorce, 2009 Data
|2.||To keep the discussion simple, I wrote about getting divorced. Much of the same information applies to unwed parents as well.|
|3.||Pro Se Divorce
Pro Se divorce means that you are representing yourself in your divorce case, without an attorney.
About Virginia Colin
Virginia L. Colin, Ph.D., is a Certified Family Mediator with decades of professional experience in teaching, research, counseling, and mediation. Dr. Colin earned her B.A. from Swarthmore College, her M.A. in Psychology from Columbia University, and her Ph.D. in Developmental Psychology from the University of Virginia. She is a founding member of the Academy of Professional Family Mediators.
Virginia specializes in working compassionately with estranged parents, helping them find ways to cooperate for their children’s benefit. As a parent (married, then divorced, and then, years later, remarried), step-parent, foster parent, friend, counselor, and mediator, she has extensive experience with all aspects of family distress, separation, divorce, and subsequent changes. Virginia endured a horrible litigated divorce and saw the damage it did to her children and to her, so she strives to help other couples and ex-couples find a better way. Although most of Virginia’s work is with ex-partners who stay separated, she also enjoys helping people negotiate ways to heal their relationships.
Virginia now travels throughout Northern Virginia to provide family mediation services, and she is also available to work with clients elsewhere in Virginia and in other states by Skype, phone, and email.
Click the button below to visit Virginia’s website, Colin Family Mediation.