Mediation versus Litigation in Divorce Cases
Explore the Differences Between Mediating Your Divorce Case and Litigating Your Divorce Case.
Introduction.What's the difference between divorce mediation and divorce litigation? This is a question we answer often. The exploration of this question is crucial to your decision making process as to how you approach your divorce process. The most important difference is that you get to decide the pace at which you proceed. You also get to decide the order that you complete the basic steps of the dissolution process.
We outline the three (3) basic steps of the dissolution process in our Divorce Flow Chart. It should be noted that the additional and often onerous steps of motions for temporary orders are not included in this flow chart as they are not used in mediation where we reach the temporary agreements for items such as custody, visitation, support, debt payment, and living arrangements in our office instead of having a Judge decide for you.
This article is organized using Steps One, Two, and Three of the Divorce process.
Step One.In a litigated case, you start by filing the Petition and having the Summons issued by the court. The other party is then "served" with these papers. This usually creates an emotional response in the non-filing person. Even when you are expecting the paperwork, being "served" and actually having the papers in hand creates an emotional response. You are now the "Respondent" and the other person is the "Petitioner." It is even more highly emotionally charged when you are not expecting the paperwork. The person being served is put into a defensive position. This leads to much anxiety and often a more severe response than may be necessary. They hire a "mean" lawyer who will "go for the jugular" and make the case way more expensive in terms of legal fees than is necessary. The person filing (Petitioner) then has to respond in kind and off you go on the "scorched earth" policy which burns through money and is emotionally destructive to the entire family and their finances.
[The person that files the case is the Petitioner – as they are Petitioning the Court. The other person is the Respondent – as they are Responding to the Petition.] [See Before You File from our DIY book CalDivorce123, A Client’s Guide to California Divorce for more details.]
To the contrary, in a mediation case the two of you decide together when to file the case and who the Petitioner will be. While this can still be highly charged, it is a mutual decision and so the emotional charge is less and no one is “served” out of the blue. Often the person instigating the divorce will be sensitive to the other person's feelings as to the timing. This creates a sense that they are working together and not against each other. The parties feel a sense of control about their divorce process. In a litigated case, the parties often feel out control. I think we can all agree that it’s much better to feel in control of your divorce process.
One of the most onerous parts of the divorce process is what we call Step Two -- the exchange of the Preliminary Declarations of Disclosure. This is a required process and most people procrastinate completing it -- it can be a great deal of work and inconvenience. In a divorce mediation, we often start with this step so the parties can be thinking about what assets and obligations they have that need to be divided before they even file with the court. An important part of this paperwork is page three of the Income and Expense Declaration which is the expense page. We ask the parties to use this as a worksheet for deciding how the incomes of the parties will be allocated so that each of them can maintain their lifestyles as close to the Marital Standard of Living as possible. This way the parties can be planning the next phase of their lives. By working together in deciding how the resources of the parties are going to be allocated the parties are again in control of their finances instead of having a Judge decide where the monies are going.
Step Two.In our last blog post on this subject we explored two differences between a mediated divorce and a litigated divorce. The first two differences we mentioned were 1) you can have a mutual decision about who is going to be the Petitioner and when the Petition is filed to begin the court portion of the divorce case; and 2) the parties can confer and even work together on doing the Disclosure documents (Schedule of Assets and Debts - FL-142, FL-150, and FL-140).
In this blog post we are going to look at matters that may need immediate decisions made such as support and custody/visitation of the children. When people are in transition from a married couple living together to two household units there are a number of matters to be figured out. The issue that almost every couple has is the division of the incomes of the parties and the payment of the obligations. In my mediation sessions, I ask the parties to ‘pencil out’ their expenses or anticipated expenses if they haven’t moved yet. A good tool for this is page 3 - Expenses - of the Income & Expense Declaration. That is a very basic list of expenses so you can also look at your expense records and see what you are spending your money on.
This is a time of reckoning for both parties. Often, if one of the parties doesn’t want the divorce and feels like a victim, the negotiation of how to allocate the income of the parties for short term living expenses and moving has an emotional charge on it. Likewise, there are complex emotions surrounding where the children will spend their time. These issues are best discussed with the mediator – a neutral third party, rather than preparing paperwork with (usually) ugly, hurtful, and emotional allegations. These emotions are often said out loud to each other in my office, and often need to be said. But this can be part of the process of the separation of the family and it is much safer to have them said in my office with the three of us than in court papers which are public documents where anyone can go to the courthouse and read them.
When the parties reach an agreement on how to handle the finances and children for the short term, we can write out a temporary agreement. We can adjust it as time moves forward and the circumstances of the parties change.
This scenario is vastly different from the one in which the parties file motions with the court and put their often ugly and angry allegations about each other into public court documents. There are often many court appearances to resolve even simple issues that can run into the thousands of dollars.
Step Three.This is the final step for finalizing the documents and filing them with the Court. In a mediation, the parties sometimes start with the agreement before they file. In such an instance they can rest assured that they know what the Judgment (signed and filed document evidencing your divorce and the terms) will state.
There are two procedures to finalize the divorce and the difference depends on whether the Respondent has filed the Response with the Court. This has a filing fee of $435.00. In a mediation, we usually grant the Respondent an extension and then take their default to save them the $435.00 filing fee.
With either method, there can be an agreement submitted to the Court. The advantage of mediation is that you can plan the timing of the signature of the agreement which becomes part of the Judgment. This gives you more control of the process.’
In a litigated case, the worst case scenario, is when the parties don’t agree which leasd to much more document preparation, court appearances, and legal fees. In a litigated case, you also have to complete the Disclosure documents AGAIN in a Final Declaration of Disclosure. (This step can be waived if an agreement is reached.)
It is not uncommon for the court appearances - Settlement Conferences and Trial Dates to be continued for several years while the parties attempt to either reach an agreement or gather more evidence to support their claims at trial.
In the situation where the parties reach an agreement early in the mediation process, the final paperwork can be submitted along with the initial Petition which greatly shortens the Court process.
This is the step where the advantages of mediation are most apparent. It not only takes, the emotions and needs of the parties into consideration, but it allows them to control the timing of the final paperwork.