Divorce: Mediation or Litigation?

Many people anticipating an uncontested divorce ask me which divorce process is faster, easier, and less expensive: mediation or litigation? Most people believe mediation is the automatic winner in all of these categories. My short answer is: "It depends."

I am not trying to be evasive or nonresponsive. Like any process that involves multiple parties, issues, schedules, and the Court system, everyone can control just their own participation, and the legal machine moves only as fast as its slowest part. I have mediated divorces that have taken nearly 6 months just to reach preliminary agreement, and filed regular complaints for divorce that were finalized in as little as 3 weeks from the date of filing.

Mediation generally has the potential to be a faster process than litigation. Most mediation clients come to me because they would like to avoid certain aspects of litigation, namely hefty attorney fees, Guardian ad Litem expenses, and the possibility of lengthy Court involvement. In mediation, clients are able to take more control over the process, and perhaps most importantly, control over the outcome. The mutual desire to reach a reasonable result in an efficient manner may help drive the mediation process forward to expedient conclusion.

With a mediation, the speed with which the divorce issues are resolved and the documents are completed depends on the clients' mutual availability to meet with me (I only meet with both clients together) and the time they take to gather the information needed to complete the forms. My clients have the option of completing the forms themselves, and I am available to review them, or if they prefer, since I am an attorney mediator, they can give me the information and I will prepare the forms for them. Once the documents are ready for filing, my involvement ends and it is up to the Clients to file their paperwork with the Court and proceed from there. After filing, the wait for a hearing date depends on the Court schedule, but clients should expect to wait approximately 3 months.

It takes two parties to mediate. If either spouse does not want to participate in the mediation process, and if it is not possible for the parties to discuss or negotiate issues together, the only other alternative to obtain a divorce in Massachusetts is to litigate. There are other reasons why mediation might not be the best option for a divorcing couple, such as if there is a history of domestic violence, psychological intimidation or abuse, or if one party is incapacitated to the extent that he or she is unable to comprehend the legal issues and the implications of the mediation or divorce. Or, the parties may simply not both be emotionally ready to discuss and negotiate the issues that need to be addressed. It may be easier (and hence faster) to share information with an attorney, and not have to communicate directly with the other party.

Litigated divorces do not have to be drawn-out nightmares. Sometimes parties just feel more secure about proceeding with a divorce if they have legal counsel to guide them through the process. For many people, their divorce is the first time they have interaction with the Court system, and the process itself might seem scary, intimidating, or overwhelming. Having an attorney who can explain legal rights and court procedures, help complete the paperwork and negotiate the agreement, and accompany a party to court hearings might be all a party needs to feel secure in proceeding with the divorce. The parties can still negotiate the agreement and finalize the divorce without acrimony, and the whole process might not take longer than if it had been mediated.

Since mediators and attorneys are generally paid on an hourly basis, the amount of overall expense will likely depend on the number of professionals involved, and the time it takes for the parties to reach a resolution, whether by agreement or Court order.

So is mediation or litigation faster? The length of time to completion depends on the involvement of the parties and their ability to come to terms. As to which is easier, the route one party feels is easier may not be right for the other spouse. If one party does not or cannot mediate, litigation may be the only viable option. In certain circumstances, litigation might be easier for a party than attempting to mediate. And regarding cost, if parties can discuss the issues between themselves and complete some of the paperwork, then fewer professionals need to be involved for less time, and as a result costs may be minimized. While there is no hard and fast certainty as to whether the mediation or litigation route might be faster, easier, or cheaper for an uncontested divorce, the various factors discussed here should be weighed on a case by case basis, because ultimately for each couple, "it depends."

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