Litigation vs. Mediation: Choosing the Ideal Route for Your Family

July 15, 2021

If you are filing for divorce in the state of Maryland, you have several options to resolve the pending issues and finalize the divorce. Every marriage is different and each couple is going to have unique goals and circumstances that will inform the optimal choice for both parties. The options include litigation, negotiated settlements, mediation, arbitration, and collaborative practice. Here, we will focus on comparing more traditional litigation route and mediation.

Litigation

In a litigated divorce, each spouse retains their own family law attorney who will review that individual’s financial, familial, and personal objectives, and advocate solely for their client. The parties must follow the schedule and deadlines set by the Court, and engage in a more formal discovery process. The attorneys advocate for their respective clients before the Court. A settlement may be reached prior to the Court making a decision, sometimes on the eve of trial.

Mediation

In mediation, the spouses agree to hire a neutral mediator to facilitate an agreement that benefits both parties. The mediator may be a family law attorney, a retired Judge who has presided over family law matters, or an individual who has certified mediation training and is familiar with Maryland divorce law and litigation. Parties may attend mediation unrepresented, or have counsel present to provide legal advice during the mediation session.

The choice between a litigated divorce and mediation should be made carefully and with a deep understanding of the pros and cons. The details of a final divorce agreement will affect each party’s finances, children, and emotional well-being for many years to come. Your trusted family law attorney can help you make this decision to align with your goals and circumstances.

Advantages of Litigation

Level the financial playing field: If only one spouse has control over the family’s financials, the less knowledgeable spouse is less equipped to make informed demands and concessions regarding the host of complicated financials of the couple’s divorce agreement. An extreme imbalance in knowledge often requires a more formal discovery process and the personal representative of a family law attorney rather than parties attending mediation unrepresented.
Trust: If a client does not trust that his or her spouse acted truthfully or in good faith with regard to family finances, personal legal representation is usually advised. When a case is opened with the Court, it will permit for the discovery process, including subpoena power, and allow counsel to review and track assets, investments, income, and employ a forensic accountant or other experts if necessary.
Arms-length communications: In cases where the two spouses are unable to calmly “sit together” at the mediation table, both literally and figuratively, they can spare themselves that discomfort and deal only with their respective attorneys. If the spouses live together or share custody or care of minor children, delegating potentially heated negotiations to their attorneys can eliminate strife in their daily communications and in the presence of their children.
Avoid the need for review counsel, or wasted time and money on a failed mediation attempt: If a couple pursues mediation without counsel, then prior to signing any agreement, the mediator will recommend that each party review the agreement terms with their own counsel. A mediator cannot provide legal advice to either party, and the mediator will rely upon the parties to provide their financial information voluntarily. Engaging in litigation from the start precludes the risk of doubling up on review and fees for both a mediator and lawyers. Carefully assessing this risk from the start on a case-by-case basis will avoid expensive overlap.

Advantages of Mediated Divorce

Personalized: Mediated settlements can be finely tailored to the individual needs of the family. The mediator guides the parties to agree through a “give and take” approach, depending upon the unique values and preferences of the couple. Parties can participate in multiple mediation sessions in order to reach a final resolution. In-court litigation is decided by judges who have the power to make rulings for families with whom they have no familiarity beyond what is presented at the trial. Mediated settlements can be creative and personal in order to meet as many familial needs as possible.
Cost-efficient: One professional, versus two, is retained in a more agreeable and resultantly less time-consuming process. The costs are much more transparent and controllable by parties to a mediation. Additionally, scheduled mediation sessions planned at mutually convenient times for all parties save time and money.
Improve amicability: The communication required between the spouses in mediating a divorce settlement can help preserve shared history, property, children’s well-being, and the couple’s circle of family and friends. Ending the marriage while maintaining these critical components of life can result in a more positive outlook and future for all involved.
Benefits the children: The couple’s ability to determine the custody and visitation schedule that works best for the myriad needs of their children is a major advantage of mediation. Further, an amicable divorce settlement, or at least a less litigious one, salvages the sense of family and security for children of divorcing parents.
Privacy: Judicial hearings are conducted in open court. A public address of such private matters can feel humiliating to the parties and potentially add to the trauma of this highly personal process.

TNS attorneys are proficient in litigation, mediation, and other avenues of alternative dispute resolution, and understand the intricacies of each process. We pride ourselves in guiding divorcing couples in Maryland towards the most advantageous route for their individual case.

If you have questions about divorce and mediation, please contact Turnbull, Nicholson & Sanders, P.A. at (410) 339-4100 or info@tnsfamilylaw.com. Our team of family law attorneys is here to help guide you.