Benefits of Choosing Mediation Over Litigation

For many divorcing couples, there are a number of benefits of choosing mediation over litigation. Mediation is an informal process where the parties use a neutral third party, a mediator, to help them resolve their issues and reach an agreement, if not on all, but some of the matters involved. Mediation is non-adversarial, allowing the parties to work together to reach an agreement with which they can both be happy and can cost much less than fighting it out in court. This blog discusses the benefits of choosing mediation over litigation. 

Mediators work for both parties, not just one, do not give legal advice, cannot make any decisions as can a judge, and do not attempt to convince either party to agree to anything to which they do not want to agree (Ind. Alternative Dispute Resolution R. 2.7(A)(3)). The mediator helps spouses narrow down and prioritize the issues and then facilitates a discussion about how to revolve each issue, offering new ways for the parties to think about the issue and reach an agreement (Ind. Alternative Dispute Resolution R. 2.1). Mediation conferences are generally held in the mediators office and are an informal non-combative way for parties to work out solutions to the problems keeping them from settling their disputes. This is particularly useful for parties who have children and wish to keep the contention levels as low as possible.

It may be common for a child to hear their parents arguing or disparaging the other during a divorce. Some parents become disgruntled and frustrated enough to withhold parenting time or even accuse their spouse of child neglect or abuse in order to prevent the other parent from being awarded custody or parenting time. Mediation can help minimize the anger and resentment that a court battle inevitably enhances (Equitable Mediation Services). Giving parents a safe place to discuss their feelings, a third party to help them work together to find a resolution with which they can both be happy, and a continuing reminder that the child’s best interests should come first can help them learn new skills and ways to communicate that will serve them and the children long after the divorce is final.  

Working out an agreement with a mediator can also be quite a bit less expensive than litigation. Instead of paying both spouses attorneys at an hourly rate to conduct discovery, file motions, draft proposed agreements, and attend hearings, as well as paying any other professionals that need to be involved, such as accountants or appraisers, each spouse simply pays their share of the mediators fee. Unless otherwise agreed to by the parties, the court will divide the costs of mediation between the parties as it sees fit (Ind. Alternative Dispute Resolution R. 2.6). 

Choosing mediation over litigation helps the parties maintain control over their divorce and how issues are resolved, as opposed to going to court to present evidence and make arguments, then letting a judge decide how the issues will be resolved (American Bar Association). Parties are more likely to follow a mediated settlement agreement than they are a court order forced upon them, as they participated in creating an agreement that fit their specific needs and unique circumstances. Mediation also allows the parties to work around their schedule and time frame, allowing them to schedule sessions when they are both available and take as long as they need to come to a full agreement. That being said, mediation often takes far less time than does litigation, allowing a divorce to be finalized more quickly. 

Not only does mediation allow couples to maintain control over their divorce and learn to discuss and resolve their issues on their own, while saving time and money, but it is an informal and non-adversarial way of getting divorced. When attending mediation conferences, one does not need to worry about what to bring, or not bring, what to wear, remembering courtroom rules, or saying the right thing. You can wear what you want, bring a drink, and say how you feel or what you think. The goal of litigation is to present the best argument in order to win, however the goal of mediation is simply to talk to the other party in an effective and respectful way so that both parties can leave happy, with a collaborative agreement they can both follow. This type of peaceful resolution is usually far less stressful than battling it out in the courtroom. 

Mediation is also confidential (Ind. Alternative Dispute Resolution R. 2.11) and allows the parties to bring their attorney with them, if they choose, to provide legal advice concerning any agreement they may have reached (Ind. Alternative Dispute Resolution R. 2.7(B)(1)). However, mediation is not for everyone. Parties who are unwilling to compromise or who believe that a divorce is something a person can “win” will likely see no benefits of choosing mediation over litigation. 

This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.


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