Today’s post will give you a basic understanding about the differences between mediation and litigation and how to decide which is best for your specific circumstances.

A Basic Definition of Mediation

Mediation is a process where two parties resolve issues with the help and encouragement of a neutral, professionally trained, 3rd-party mediator.  “Neutral” means that the mediator does not take a position or support either side, but that they help to find common ground between the parties so they can reach agreements.  Mediators may provide you with information about what the law is regarding specific issues, how judges tend to rule in specific circumstances, and sometimes they will ensure that the parties are focusing on the best interests of the children.  Some mediators, like those at The Children’s Law Center, may bring the “voice” of the child or children into the process.

How? With the parents’ permission, the CLC mediator may call the child’s therapist, teachers or other professional that the parties feel will bring important information to the mediation process.  In some circumstances, if the children are older and have strong opinions, the CLC mediator will meet with the child and ask specific questions already agreed upon by the parties.  This way parents will have an understanding of the preferences and/or concerns of the child when they are working together to reach agreements.  This can be especially helpful when parents are using mediation to create a parenting plan.

Confidential Conversations

 Mediation is confidential.  The settlement discussions and offers cannot be used in court; this allows the parties to be creative, solution oriented and honest, all things necessary to reach the best agreements possible for you and your family. 

Your CLC mediator’s goal is to help you and your co-parent to find mutually advantageous  solutions to difficult custody and financial issues.

A Basic Definition of Litigation

Litigation describes the process many of us are familiar with thanks to T.V. shows and movies—attorneys arguing their client’s cases in front of a judge and the judge making the ultimate decision about the disputed issues. 

Litigation is commonly chosen when the parties are too far apart on major issues and settlement is unlikely or even possibly a waste of time. For instance, it can be very difficult to mediate relocation cases. Neither parent is willing or interested in agreeing to living far away from their children, or only seeing them on holidays.  Though a judge may make parties attend mediation in relocation cases, the final decision is much more likely to be made by a judge.

Increased Structure and Formality

Litigation involves many rules and procedures.  The court will set specific deadlines for the exchange of evidence, identifying witnesses who will testify, settlement conferences and ultimately a trial.  Trials can last anywhere from half a day to numerous days spread out over a number of months. 

When Should you Choose Mediation?

Mediation is  especially desirable for 3  key reasons:

  1. Mediation is much less expensive than litigation: For separating or divorcing parents who believe they can reach mutual agreements with the support of a neutral third party, mediation is going to be much less expensive than litigation. 
  2. Mediation gives the parties more control over important decisions about their families and finances.   In the mediation process, both parties have the opportunity to share their thoughts, ideas, and opinions in a confidential and neutral setting.  It is always preferable for parents to maintain the ultimate control over their children’s lives and their financial security, rather than leaving it in the hands of a judge who is a stranger.
  3. Mediated settlements often create the foundation for a happier, low-conflict future co-parenting relationship with less likelihood of future litigation.  A mediated agreement can lead  to powerful, mutual understanding: through the mediation process, parties may find themselves gaining greater understanding of how the other side perceives the situation.  

When is Litigation Right for You?

Litigation is sometimes the only option for obtaining a final decision:

  1. Litigation is often best when one or both parties have character disorders or traits, such as narcissism, borderline personality disorder, etc., basically, people who are very difficult to negotiate with, or who have a history of power and control, chronic lying and/or manipulation and/or violent behaviors. These cases are not appropriate for mediation and mediation often creates a layer of expensive, time-consuming negotiations that are not helpful and sometimes even hurtful. A strong judge can set a serious tone and manage a case in such a way that a party with mental health issues cannot “run the show.”  In these cases it is extremely important to have an attorney who can advocate for you and for your children against a chronically difficult or possibly mentally ill co-parent.  The importance of ensuring your judge is aware of the bad behaviors of the other party, and how those bad behaviors impact you and your children, emotionally and financially, cannot be overstated. 
  2. One or both parties feels unsafe or unwilling to participate in mediation because of a history of being abused and/or controlled by the other party.  In some cases, one party is afraid of the other party, or there is just too much emotional stress associated with mediation.

The Impact of COVID-19 on Litigation.

The COVID-19 pandemic has had far reaching effects on access to Family Court.  Issues that are time sensitive will not be resolved in court in a timely manner and, with all hearings taking place by video-conference, it can be extremely difficult to effectively argue your position.

It’s takes 6-8 weeks, at a minimum, for motions to be scheduled for hearings, and conflicts can become entrenched and escalated while the parties wait for their opportunity to have their cases heard.   This delay can lead to increasingly stressful situations for children and their families. Court dockets have become very full due to limited spaces, restricted use for social distancing purposes, and other COVID-related delays.

The Impact of COVID-19  on Mediation

Due to COVID-19 safety and social distancing guidelines, mediation is mostly being done by Zoom or other video conferencing application.  This lack of face to face interaction can limit the effectiveness of mediation, as the “human” element of mediation is minimized by distance and technology. 

The CLC has expanded their office space to allow for in person, socially distanced mediation to ensure that mediation is as effective and meaningful as possible.  We have multiple mediation spaces that allows parties and their attorneys to be present in the same location, safely.  The CLC also has a state of the art “Smart Board” that allows multiple people to be in the same place while video conferencing with the other party.  This is exceptionally helpful when a party wants to be in the same room as their attorney, or when a party wants the in-person support of a counselor or advocate. 

Choose the CLC for All Your Needs

The attorneys and mediators at the Children’s Law Center are available to help you resolve your Family Law matter efficiently and effectively, whether through mediation or Family Court litigation.  We are dedicated to the emotional, financial, and mental wellbeing of our clients and their children.  To learn more about how we can provide you with counsel through mediation, litigation, and the other legal services we offer, Contact Us.

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