Which option is better for your situation?
Divorce most commonly uses the process of litigation to reach an agreement for both parties. In many cases, mediated divorce can be a less expensive, faster, more collaborative process.
Litigation
Mediation
What is the difference between these processes?
Litigation is adversarial. Each party tries to put their best case forward, and to contest the other person’s case so that they may be successful in the family law dispute.
Mediation is collaborative. The parties work with a neutral mediator to come up with an agreement they are both satisfied with to resolve their family law dispute.
Which process is suitable for my situation?
Litigation is accessible for all cases. It can be used for any family law situation, including those with violence, abuse, criminal activity, recent substance abuse or untreated, serious mental illness.
Meditation is not suitable for all cases, including cases with violence, abuse, criminal activity, recent substances abuse or untreated, serious mental illness.
How long does it take?
Litigation can take months to years.
Meditation typically takes weeks to months.
What information do I have to disclose?
Litigation involves exchange of specified documents. Each party has a right to question the other party under oath and request additional relevant material. The disclosure and questioning process may be time consuming, especially if parties are not compliant or are not timely in their compliance.
Mediation involves a consensual exchange of documents to the satisfaction of each party. The parties can agree on the type and amount of disclosure that satisfies each other’s needs. As disclosure exchange is by agreement, it is typically much, much faster and simpler.
How are issues that arise during the process handled?
With litigation, issues that arise at the start or midway though the process are resolved through a Court order that is either the result of a Court Application or through negotiation during the process.
With mediation, issues that arise at the start or midway through the process can resolved through an agreement reached between the parties with the assistance of the mediator.
How is evidence handled?
With litigation, evidence about what has happened in the relationship is put in sworn affidavits or is sworn to under oath, and is available as part of the record of the matter. This record is usable in the future, by either party, their counsel, any may be available to others, including the parties’ children or future spouses, by application to Court. All things said in court are recorded and available in a transcript.
The Litigation process has strict rules of evidence about what can and cannot be used.
With mediation, all things said within the mediation is “without prejudice” meaning it cannot be brought up again by either party in future proceedings or other contexts. All documents provided by either party may only be used as agreed by the parties within the mediation.
There are no rules of evidence in mediation and parties may use whatever material is agreed upon.
What is the conclusion of the process?
Litigation will result in a final Court Order or judgment that is enforceable by the Court and other entities like Maintenance Enforcement
With mediation, results depend on agreement of the parties. The parties may choose to have any agreement written out as an understanding or put into a binding legal agreement or Court Order. Typically for a mediated agreement to be legally binding it must be consented to with independent legal advice for both parties or into an Order that is granted by the Court.
If the parties do not reach agreement, there is no conclusion to the mediation and the parties would have to engage in another process to resolve their dispute.
How do we resolve future conflicts?
With litigation, future conflicts may require additional litigation at a later date.
Many mediated agreements have a built in process for how the parties will resolve future conflict.
How much does the process cost?
Litigation is based on lawyers’ hourly rates usually between $250 and $600 per hour. The overall cost is unpredictable as the time involved is not predictable. Costs can escalate quickly into the tens of thousands. Clients cannot control the costs as it is dependent on the other parties, counsel and the courts.
In mediation, costs are more predictable, with the parties paying for a certain number of hours of mediation or for a particular package. Clients control their own costs within the process.
What kind of consent from my partner is needed?
With litigation, parties do not have to consent to the process. One party can start the process even if the other party opposes.
With meditation, both parties must consent to the process.
Benefits vs. Negatives
Benefits of Litigation:
1. The matter will resolve and the parties will have a final decision that they can rely on.
2. Decisions are enforceable.
3. This is a well know process that people are familiar with.
4. All types of matters may be dealt with.
5. Disclosure can be thorough.
Negatives of Litigation:
1. Continues conflict and fighting, often negatively affecting the children and the parties own wellbeing.
2. Costs cannot be controlled.
3. Takes a long time to resolve – sometimes years.
4. May require multiple court applications, each with their own costs and stresses.
5. Parties do not control outcomes and court is limited in types of outcomes.
6. Parties cannot choose their Judge or Justice.
7. Process is strict, and limited in its design.
Benefits of Mediation:
1. Creates a Collaborative agreement that both parties had equal say in drafting.
2. Parties have greater control over the outcome and can be creative and solution oriented in the way that outcome is framed.
3. Reduces conflict in the parties’ relationship making co-parenting easier and easing family tension for the children.
4. Mediation is very cost effective, often a fraction of the costs of litigation.
5. Mediation is completed in a much shorter time frame than litigation.
6. Parties can choose their mediator.
7. Process may be flexible to the situation.
Negatives of Mediation:
1. Decisions are only enforceable if the parties consent to the enforceability of the agreement.
2. May not result in an agreement at all.
3. Parties may not have full information about their rights and responsibilities before making agreement, unless using a good mediator with family law training and experience.
4. Often depends on the skill of the mediator and the type of process that is engaged.
5. Parties have to consent to the process.