Mediation versus Litigation in Divorce Cases
Mediation versus litigation in divorce cases
Whether a couple is divorcing amicably or adversarially, the only way two people in Massachusetts can finalize a divorce is through the court system. The court requires that all issues related to marriage be addressed before it can issue an order that the couple is divorced. Some major topics that must be addressed in a divorce contract (called separation agreement in Massachusetts) are the division of assets and liabilities, spousal support, and child-related issues. However, there are many more depending on the family’s particular situation.
There are multiple avenues people can take in reaching a separation agreement and a court order with their spouse. Two of the most commonly used methods during the divorce process are litigation and mediation.
The court always prefers that the parties involved in a divorce reach an agreement via negotiation (memorialized as a separation agreement) about all the relevant issues rather than ask the court to decide for them.
Litigation is a form of advocacy where you engage the court system to reach a divorce. People can be pro se litigants (represent themselves) during the court proceedings or hire an attorney to litigate on their behalf and navigate the court process. This also usually means there are out-of-court negotiations between the two sides in an attempt to (1) resolve any relevant temporary issues and (2) try to settle the divorce via a separation agreement.
During the pendency of litigation, there are ongoing court appearances and hearings where the court attempts to guide the parties in reaching the divorce agreement. However, sometimes the parties cannot agree, and the case goes to trial. After the trial takes place, the court will issue a judgment addressing all of the details of the divorce as related to the parties’ children, division of assets and liabilities, and any obligations to each other post-divorce.
Mediation is a form of alternative dispute resolution where you and your spouse will be guided by a trained neutral (mediator) in reaching the terms of the separation agreement. Sessions with the mediator are confidential, which means that the mediator cannot disclose to anyone (even the court) what you and your spouse discuss. Because the mediator is “neutral,” the mediator cannot provide legal advice to either side.
Useful points to keep in mind about mediation:
• It is often used by people before filing a divorce petition in court to try and avoid litigation.
• Sometimes, parties will engage with a mediator, even if they have a petition for divorce pending, to avoid the adversarial nature of negotiations involving their attorneys.
• Mediation is a voluntary process – both sides need to agree to participate.
• Mediation is not a good fit for those relationships affected by domestic violence as it requires mutual respect and full disclosure on both sides.
• Only mediators who are attorneys are allowed to draft a separation agreement that you and your spouse hopefully reach.
• Mediation can be a great way to save money by avoiding litigation and having a stranger (judge) make decisions about your children and your life. Nevertheless, while going through divorce mediation, it is a good idea to have an attorney you can consult with regarding your legal rights and responsibilities, but is especially important before signing the separation agreement.
If you have any further questions about the above or need an experienced attorney for litigation, mediation, or consulting services, please contact Attorney Yuliya Fisher-Nayyer.
