Most people consider mediation because of the perceived cost savings. There can be savings with mediation, perhaps as much as 50%. This is the best-case scenario, however, and depends on the good will and active cooperation of both participants. Where there is friction, whether as a result of abuse, over finances, or about children, mediation is generally not viable. There are pluses and minuses to both choices.
Mediation is more private, can take less time (or more time), and perhaps most importantly, can be better for children, particularly when the children are a strong positive value for both parents and there is no conflict over custody, visitation and support. An important disadvantage to mediation is that the mediator cannot advise either participant. The mediator can only encourage the participants to reach agreement and then help put the agreement in writing.
Without a clear understanding of the rights and obligations by each participant, one or both could be making big concessions that might not otherwise result if they knew the law and were properly advised. This problem can be eliminated when both sides have their own separate legal counsel to advise and guide them. There is nothing to prevent either party from conferring separately with their own attorney throughout the mediation process. This does, however, lose at least some of the cost-saving advantage of mediation.
It is important to know that traditional divorce through the courts does not prevent the parties from reaching agreement about most, if not all, issues. Indeed, the overwhelming majority of divorce cases are settled without the need for a trial on the division of assets and liabilities, on custody, visitation or support or other issues; although court appearances can still be many and the process lengthy. The advantages of mediation tend to be lost when there are significant assets, some of which may be difficult to value or even be hidden. Additionally, when there is a significant dispute regarding custody and visitation for minor children, virtually all such disputes are referred to what is known as Family Court Services. This will result in a meeting with a facilitator or counselor, who will interview the parties, perhaps the children, and make a recommendation to the judge. This process is not available or workable through mediation.
In most cases, the traditional process through the courts is the most suitable. When either or both parties have financial limitations, it can also, in some situations, be less expensive than mediation. When the parties each have an attorney, the process can reflect their deteriorated relationship and the attorneys will “fight” on their client’s behalf. This is what can make the traditional court process expensive. If the parties can work together, though not necessarily face-to-face, they and their attorneys can resolve the disputed issues and finalize the matter without undue expense.
The dissolving of a marriage is a difficult time for all concerned and is often fraught with distrust and intense emotions. Whatever legal process is chosen to end the marriage will be a microcosm and reflection of the parties’ individual and collective state of mind and emotion during a time of transition to their separate new lives.
And, during these COVID-times, the entire court process is slowed and less responsive to emergency or, especially, non-emergency but immediate needs for assistance. Eventually, it is likely that most court appearances will be by video, telephone or some other electronic means. It is uncertain, but the lack of the face-to-face in court immediacy of the past, may result in delays in reaching agreement. Mediation has the potential to both accommodate and overcome this possibility.