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Understanding the Differences between Mediation and Litigation
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By: XSTILLA.COM
• Mediation: Two divorcing spouses meet with a third party, usually an attorney, financial advisor, or therapist, to come to an agreement regarding the terms of their divorce without the need for disputing their case in court.
• Litigation: Two attorneys, each representing one spouse presents and argues their respective client's case in front of a judge who makes the final ruling and decides the specifics of the divorce.
Neither mediation nor litigation can be a "one-size-fits-all" solution for any case without taking mitigating circumstances into consideration. In other words, it's foolish for a couple to automatically choose one over the other without first fully understanding the differences.
The average total cost of using the mediation process as opposed to litigation in court is usually one of the first differences between the two that gives couples reason to pause. With litigation, two attorneys must be retained, but mediation primarily uses only one, or none at all, depending on what type of professional you choose to mediate.
As far as retaining control over the outcome of the divorce, mediation allows both spouses to have their needs known, with the mediator helping to come to a middle ground that's acceptable by both parties. With litigation, the attorneys will be the ones making the major decisions, with the ultimate outcome being decided by the judge after both sides have been heard.
This is especially important in cases where custody issues are one of the decisions that must be made, as mediation gives the parents the control to work out a viable arrangement, instead of leaving it up to the judge.
Litigation has the reputation of being a lengthy process where court negotiations have the potential of taking months, or in highly disputed cases where there are considerable assets to divide or hostile custody battles to resolve, even years. Mediation, on the other hand, gives the control to both of the spouses to decide how long their divorce will take, as the more cooperation and willingness to work with the mediator, the quicker the whole process will be.
If privacy is a concern, anything said during mediation is held in the strictest of confidence, which is also true of what's shared with your attorney, however, anything said during litigation will be retained in the court's records.
Here's a simple chart to quickly illustrate the differences between mediation and divorce.
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Mediation
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Divorce
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Control:
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Total control for both parties
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Judge decides ultimate outcome
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Cost:
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Reasonable, or free
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Potentially expensive
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Privacy:
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Takes place in private
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Disputed in a public courtroom
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Satisfaction:
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Statistically high
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Statistically low
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Time:
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Minimal, depending on issues
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Lengthy, even with few issues
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