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Differences Between Litigation and Mediation in Divorce are More Than Just Financial

By Kathleen Larson, Esquire

Many times when people discuss the differences between litigation and mediation in the realm of divorce, the main issue that people dwell upon is the much higher cost of litigation. The truth of the matter is that divorce is so prevalent in our society today that very few people do not have a story about friends who have gotten divorced and have each paid their respective attorneys upwards of ten or fifteen thousand dollars or more to do so. With the average cost of a mediated divorce being just a fraction of that cost, it is easy to see why that factor tends to catch people’s attention. But in the realm of family law, especially divorce, there are many other “costs” of litigating rather than mediating, which are overlooked.

Divorce, itself, is both a legal process and part of a family process. It has been stated often that the emotional forces which are bound to the dissolution of a marriage and a family argue for more delicate measures than the traditional court proceeding. Mediation can be used by both parties to educate both parties about their needs now and into the future. Mediation can often help parties see payments for child support or alimony as less of an obligation and more of a family need.

Litigation, often, accentuates the disputes that have brought the parties to the point of realization that the marriage cannot continue. But the scars it leaves in its wake, may never heal. Often times payment of any sum to the other party is seen as a defeat rather than helping both parties move on with his or her life.

Mediation further expands the process of a couple that has already recognized the need for dissolution of their marriage, to also come to the realization, that as long as they are the parents to their children, they will need to cooperate to help see positive gains by all parties in the divorce and after.

Unlike the process of adjudication which takes place at the courthouse, the emphasis is not of which party is right or wrong or who wins or loses. The emphasis in mediation is to establish a workable solution to best meet the needs of the family as a whole.

Mediation in the dissolution of marriage promotes a policy that society should encourage, where families, even if they are no longer operating as a unit, may still make all their important decisions together, rather than relying on the slim resources of our court system for making decisions that they are better equipped to make on their own.

The court system is ill-equipped to deal with the enforcement of the often fragile interpersonal relationships between family members that will continue long after the divorce is final. Once the court becomes involved in these issues, it often will be needed over and over to provide added support or enforcement, rather than allowing the families to enforce themselves and their agreements.

Any agreement, made by the parties, as part of the mediation process should result from the parties own formulation of such agreements. Therefore, the parties have invested quite a bit into this agreement, not only financially but emotionally as well. Accordingly, parties in this position are much more likely to support the terms of this agreement over time. When the court orders an agreement, or even when separate attorneys negotiate an agreement for the parties, the parties are much less likely to uphold or support such agreements. The end result of such litigated agreements is often more emotional and financial cost.