Is Litigation Ever Preferable to Divorce Mediation?

The general concept in the English language of the "rule of three" suggests that things often come in threes, and in the case of divorce, this is true as well... there are 3 main ways to come to a divorce settlement. First, the two divorcing spouses can get together and agree to a settlement either alone, or with the help of their attorneys. Second, the divorcing spouses can litigate their case in front of a family court judge, presenting witnesses, making arguments and otherwise going through all the steps involved in a trial; the judge will then decide on the split of the property or the split of the kids. Third, the divorcing spouses can decide that they just aren't going to agree on their own, but that they also don't want to throw their future and fate on the mercy of a judge; these spouses can go to a third party mediator who will help facilitate their negotiations. Mediation is usually cheaper than going to divorce court to let a judge figure everything out, and it gives the party's more autonomy- sounds pretty great, right? However, there are certain situations where litigation is preferable to divorce mediation.

When is Litigation Preferable to Divorce Mediation?

There are a few select cases where litigation is preferable to divorce mediation. These situations include:

• When your spouse is dishonest. If your spouse lies in mediation, not too much happens. If your spouse lies in court, he can be held in contempt of court and can even go to jail. Obviously, this means there is a lot more of a deterrent to lying in a court of law.
• When your spouse is hiding property or assets. Some spouses try to move money around in a divorce so they don't have to share it. The court can compel them to disclose assets and money. A mediator usually does not have the authority to compel this.
• When your spouse is abusive. You do not want to sit across the table from an abusive spouse and try to nicely discuss who gets the lawn mower. You want to go to court, get out of the marriage quick, and get protection.
• When your spouse is unwilling to compromise.  Mediation depends on both parties being willing to give a little for the good of the whole. If your spouse is stubborn and unwilling to compromise, you are just wasting your money and you're better off in court where the judge can just decide.

Getting Help

If you are considering getting divorced, you should consult with an experienced divorce or family law attorney as soon as possible. Your attorney can help you to determine if mediation or litigation is the right option for you. Your attorney can also help you to make sure your rights are protected, whichever method of divorce you choose.