“Divorce: Mediation vs. Litigation” by Susan Heikkila

What is Mediation?
Mediation is a common process used to settle a divorce. In a divorce mediation, a neutral third party is hired to discuss and resolve the issues between you and your spouse in order to settle your case. Every mediator has his or her own style, but most mediations follow a similar format- the parties and their respective attorneys set up in separate rooms, presenting their ideal resolutions and issues to the mediator. The mediator takes the positions of both parties, along with their perspectives and views of the case, and helps them work toward an agreement that covers all aspects of the divorce. Mediation can happen at many different stages of a divorce, and even can take place before either party has filed for divorce. Some counties, including Cobb, require the parties to attend mediation prior to setting a final trial or even a temporary hearing. But besides just checking that box before you can head to court, it may be in your best interest to settle your case at mediation. Here’s why.
Why Mediate?
There are several advantages to settling your case at mediation- although a trial may sometimes be unavoidable, mediation is often easier for everyone involved. First, everything that takes place at mediation is confidential. Most court records are public, and the courtroom is a forum that is open to the public, so theoretically anyone can sit in and listen to the details of your divorce. The events that take place at mediation are never published or released to public records, and the mediator can’t be called to trial should your case advance to court.
The process of mediation is often quicker, once a date is set with the mediator, momentum in your case can really take off. Mediation can also be less contentious- you aren’t hashing a divorce out in court with your spouse, introducing evidence and going through cross-examinations, which could help maintain a working relationship for the future. If you will need to co-parent with your spouse down the line, saving any mudslinging in a trial could be beneficial for your children and your mental health. Court can be hostile and bring emotions or facts to the surface that are upsetting to both parties.
A key advantage to mediation is that you are in control of how your divorce is settled. During trial, the court determines the outcome and hands the parties a ruling based on the evidence heard in court that day. In mediation, you are in control of the final settlement- if it’s a deal you aren’t happy with, you are under no obligation to accept or sign. When you go to trial, the judge hands you the final decision and there are no negotiations, even if the final result does not meet you’re your expectations.
Saving costs is another advantage to settling your divorce at mediation. A full trial can cost tens of thousands of dollars and months to get on a judge’s calendar. While mediation is a required step before a final trial, settling your divorce at mediation can save the costs of advancing further.
Complicated and difficult decisions come with litigating a divorce. Dealing with custody, dividing assets, and managing support obligations to name a few. Being in control of these decisions and having more oversight on the negotiations can be more beneficial in the long run for your divorce. But if you are dealing with a highly emotional or unilateral situation, litigation may be a better option in order to have a Judge provide a realistic picture of the outcome of your case to your spouse. If your spouse if unlikely to work towards a settlement in mediation or become unreasonable in negotiations, a trial or a hearing can be easier in terms of obtaining a realistic outcome.
The goal for the attorney is to obtain a reasonable settlement that is favorable to the represented party. Usually with all great settlements is that neither party walks away happy, because both parties negotiated terms that they had to give up and gain. But mediation provides you with the opportunity to settle your divorce on your own terms, and avoid the hassle, delay, and costs of a trial.