Choosing Between Litigation and Mediation

Most judges require that contested divorce be mediated. In fact, mediation is one of the most common forms of alternative dispute resolution in family law. Here are some pros and cons to both.

Texas Divorce Mediation

This is a process whereby the parties work with their lawyers and a mediator to come up with a good resolution that both spouses can be happy with. While it is not a fully collaborative process, it does require that both spouses be willing to make reasonable concessions. With mediation, unlike with litigation, you get to maintain a level of control that would otherwise disappear in court. With trials and hearings, the judge (and sometimes a jury) will have all the control. With mediation, however, you are in control. Although mediation requires preparation, it is less more expensive that litigation. By far, one of the biggest benefits of mediation is that there are certain agreements which can be made that a court might not otherwise be able to make. Courts generally address the big issues: custody, property division, support. There may be other matters and agreements that parties feel free to make. A common issue that parties can agree on is for each parent to contribute to the child’s college education. Mediation allows parties the freedom to contract and get a bit more creative in reaching an agreement and resolving their divorce. One of the drawbacks to mediation is that the mediator is not a judge. They cannot force you to come to an agreement, and if one of you decides not to settle, there is nothing you can do. That means that you have wasted time and money. Mediators also cannot give you legal advice – they can only help you come to an agreement. Mediation is not for everyone but it is certainly worth looking into.

Texas Divorce Litigation

While litigation does not necessarily mean proceeding to trial (in fact, most parties manage to settle out of court somehow before it goes to trial), for the purposes of this article, litigation will be treated synonymously to a trial. A trial can be expensive, time-consuming, and very stressful. However, in some cases, a trial is necessary. If one spouse is being unreasonable, it might require a judge to make the final decisions on custody and the division of property. Sometimes, a spouse might feel angry and hurt from what transpired during the marriage. They may feel that having ‘their day in court’ is cathartic, and can help them come to a point emotionally where they feel ready to settle or accept the court’s decision. However, in addition to the time and expense, most court cases are open and available to the public. No doubt personal issues will be brought up during the hearing, which could be embarrassing and painful to relive.

Even if mediation is not the best choice to settle your particular family law case, most of the time the parties will benefit from some kind of settlement process outside of court. You should consult with an attorney to decide which strategy is best for you.