Understanding the differences between divorce mediation and divorce litigation can be helpful in determining which is right for you. In full disclosure, I’m a divorce mediator, and we’re a mediation-only practice here at West Coast Family Mediation Center, so this post is going to share the benefits of mediation in addition to comparing the two processes. We do however understand that not all cases are going to be a right fit for mediation and there may be situations where you must litigate.
Cost of Mediation vs. Litigation
In terms of finances, mediation is always going to be less expensive than litigation. The process ranges anywhere from $4,000 – $15,000 total including court fees depending on how complex your case is. We work with flat fees, meaning that you know what the process is going to cost upfront and what could make it cost more. The flat fee is the total for both partners and is usually split or paid for from community funds.
In divorce litigation, couples are both going to have to hire an attorney and each person will have to pay a retainer typically ranging from $5,000 – $10,000. Depending on the attorney and their hourly rate, the attorney will bill for everything that they or someone involved in the case does for you. The initial retainer is only the cost for beginning the process and as those funds are used up, your attorney may require that you refill the retainer when it gets to a certain point. With litigation you won’t necessarily know how long the process is going to take and thus how expensive till it’s done. Even for a seemingly simple divorce, it costs on average $20,000 per person.
How Long it Takes to Finalize a Divorce
In California, there is a 6-month waiting period between when the petition is filed and served on the other party and when the divorce can be final. In mediation, we can finish everything and have the divorce final by the sixth-month date if that’s what the parties want. While we certainly have couples that take longer than six months, if both parties are committed to the process, it can be final within six months. We can have the mediation process itself done even sooner than that.
In litigation, it can take six months to just get a hearing in front of a judge on one issue, let alone finalize the whole divorce. You’re at the mercy of the court and what their calendar looks like as to when your case can be heard.
Did you know that in California anything that you file with the court (except for some items related to children) is a public record? Anyone can pull your divorce file; all they need to know is your full name. This includes any of the documents that you’ve filed with the court, including your financial documents and declarations you may have made about the other party.
In mediation, we only file what’s necessary with the courts and we don’t file any of your financial information. There are also ways to keep all your agreements confidential, which is often very important for people with businesses and other confidentiality concerns. Anything that happens in mediation stays in mediation and is only shared with professionals necessary to complete your case. In litigation, the same isn’t possible because you are required to file certain documents with the court and the judge needs certain documents to be able to decide on your case. Additionally, most court cases/hearings are open, and anyone can sit in on them and eavesdrop.
Process and Self-Determination
In mediation, you work with a neutral third party who is not there to tell you what to do or make decisions for you. They are simply there to facilitate the conversation, provide information, and assist you and your spouse in problem-solving the issues you’re facing. The mediation process revolves around maintaining a happy and healthy environment for both of you and your children if you have any. While there is a structure to the process and we make sure that we discuss everything that needs to be discussed, the process can be as flexible or structured as you wish for it to be. Mediation provides self-determination to make the decisions that you and your spouse agree on.
When litigating your divorce, you are not in control of the process. Litigated divorces not only follow very strict rules, procedures, guidelines, and deadlines. In court, the judge, who doesn’t know you or your family is the one making the ultimate decision.
In Mediation, we find that most cases are successful at reaching full agreements outside of courts and the statistics show that parties follow agreements reached in mediation more persistently than those decided by a judge. Nobody likes to be told what to do and that holds true for anyone going through a divorce. Often, litigation cases never seem to end, and the parties end up returning to court repeatedly because neither person is satisfied with the outcome.
Additionally, we find that clients who go through mediation for their divorce are more likely to return to mediation when issues arise in the future that they can’t resolve on their own. However, they are more likely to be able to resolve the issues together because they’ve built a stronger foundation during their divorce mediation.
Mediator vs. Attorney
When working with a mediator, you’re working with a neutral third party who will not be representing either you or your spouse. You may have a consulting attorney, financial neutral or advocate, and possibly other professionals involved as needed but your mediator is your main professional. Most mediators have a legal background and many mediators may have additional education/training in counseling, financial issues, and communication.
All our mediators at West Coast Family Mediation Center have their law degree (JD), extensive mediation training, and most are also Certified Divorce Financial Analysts (CDFAs). Alternatively, if you are litigating then you are going to have an individual attorney who is representing you through the process and will be advocating solely for your needs. Now all attorneys are different, some may be more settlement minded while others are going to be “sharks” focused only on getting you what they think their client should get.
If you have additional questions on whether divorce mediation or litigation is the right choice for you contact us at West Coast Family Mediation Center for a free 45-minute consultation to better understand your options.