wedding rings on separating blocks

Divorce is an extremely difficult and emotional process. The legal consequences are daunting, with the parties having to find a way to equitably divide their financial assets and establish arrangements for the time they spend with their children. The importance of these decisions can often result in relations between the parties becoming challenging and highly acrimonious. The two main methods for dealing with these issues are mediation and litigation.

What is Mediation?

Divorce mediation is a confidential process by which parties seek to reach an agreement through discussions facilitated by an independent third-party, the mediator. Mediation can be utilised to agree child arrangements or the division of financial assets following divorce.

Advantages of Mediation

Mediation can offer many advantages:

  1. Flexibility: In mediation, the parties can agree matters themselves rather than have them decided by a judge.
  2. Amicable: Mediation promotes amicable communication as it relies on mutual agreement. This is important for parties who hope to co-parent effectively.
  3. Cost: Mediation generally costs less than litigation.
  4. Time: If successful, mediation allows for a swifter resolution than litigation.
  5. Bespoke: Mediation allows the parties to agree bespoke terms tailored to their specific circumstances, which may not be available in litigation.
  6. Confidentiality: Any discussions reached in mediation are confidential and should not be disclosed in subsequent court proceedings.

Disadvantages of Mediation

However, there are also disadvantages:

  1. Compromise: Successful mediation usually involves compromise by both parties to reach an agreement. It is therefore less likely to be successful in high conflict cases.
  2. Face-to-face: Divorce mediation is not appropriate where there is domestic or psychological abuse as a vulnerable party may be pressured into an agreement which is not in their interests.
  3. Cost: If unsuccessful, mediation results in additional costs for both parties.

What is Litigation?

Litigation is the traditional process of resolving disputes through the court-based procedure. In divorce, it involves a judge deciding the appropriate division of financial assets or the arrangements for the distribution of time each party will spend with their children.

Advantages of Litigation

Litigation has several advantages:

  1. Judicial expertise: The parties will benefit from the legal expertise of an experienced judge who will be able to analyse a complex factual background and make a decision which is appropriate and equitable.
  2. Structure: Litigation provides a fixed timetable to advance the case and a momentum towards the final decision of the judge.
  3. Pressure: Litigation can be stressful and expensive. However, these pressures can encourage parties to compromise and agree a negotiated settlement which might not have been possible in mediation.
  4. Enforceability: A court order is legally binding and enforceable. This provides security and reassurance.
  5. Protection: In litigation the court will act swiftly and effectively to safeguard the interests of vulnerable individuals, such as victims of domestic abuse.

Disadvantages of Litigation

The disadvantages of litigation include:

  1. Cost: Litigation can be expensive if the parties are represented.
  2. Time: The court-based system can be lengthy and time-consuming, with multiple hearings before a final decision is made.
  3. Adversarial: The parties are pitted against each other in litigation. This can be damaging to their relationship and in the long run can make it more difficult to co-parent the children.

The Right Approach for You

Divorce mediation and litigation both have their own advantages and disadvantages. Ultimately, the specific circumstances of your case will determine which is the right approach for you. Mediation tends to be more appropriate in divorces where the parties can maintain an amicable relationship and are willing to compromise. When parties have a more confrontational relationship, litigation allows the opportunity for them to both present their case and for an equitable decision to be reached by an experienced judge.

While mediation and litigation can be treated as separate avenues, they are not necessarily binary options and are often utilised as mutually complementary forms of dispute resolution. Litigation can be useful in applying pressure and putting parties’ arguments under the spotlight in a manner which can promote compromise. In such circumstances, the family court may encourage parties to pause their litigation and pursue mediation in the hope that face-to-face discussions allow the parties to reach a mutually beneficial agreement.

If you are considering either of these approaches and would like to speak to one of our expert solicitors, please contact us.

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