Mediation vs. Litigation – A common sense trend to Resolving Matrimonial Issues
Finding yourself on the doorsteps of divorce is hard enough emotionally but add the multitude of decisions on how to divorce that are going to have to be made and it can feel completely overwhelming. While there are only two main areas for decision-making; kids and money, coming to resolution can take years and use up a lot of your hard-earned wealth. While there is more of a trend towards divorce mediation, many people still feel the need to hire top guns with the perception that their “rights” will be better attended served. In many cases on the pursuit of one’s “rights”, “best deal” or “win”, the cost associated with an unpredictable outcome does not justify the time or the means.
On the continuum of resolving divorce issues, on one end is Litigation and the other end, Mediation. Moving from one spectrum to the other you might find, arbitration, collaborative law, interest-based mediation, and other hybrids all worthy of consideration. While there may be the perception that litigation is in fact “taking control” the opposite is usually true. The reality is that retaining a family lawyer for litigation sets in motion a series of applications, affidavits, court appearances that destroys assets and relationships. Litigation is prudent in some cases where the parties have pursued every other means to resolve their issues with no success. While the outcome with litigation may be “just” in the face of the law, it is often not “fair”. The judge has to use the information put forth by the lawyers and in the affidavits with the assumption that both parties are being truthful. We know this simply is not the case. Take for example, where one party is basically telling the truth and the other is not, the outcome will likely be somewhere in the middle as there is simply not enough time or resources to achieve the real picture. To seek litigation to either prove your point, make the other person pay or to assume the outcome will be a win for you is unfortunately naive.
It is best that you and your spouse make the final decisions about money and kids, regardless of whether you get along or not. Ensuring you are an empowered decision maker with financial and co-parenting knowledge is the best recipe for success. New mediation models like “Independently Negotiated Resolution” are process and results driven and ensure that both parties are well equipped to make decisions. While mediation has been traditionally thought of for only amicable couples, new innovated models can achieve resolution for conflicted families as well. The key is to keep your assets in your pockets and preserve relationships.