Compared to the typical litigation process, mediation offers a number of benefits. Some of them are more easily measured and immediate – such as time and money savings – while others are longer-term or more abstract, such as a more cooperative process that results in arrangements that the spouses are less likely to violate.
Although mediation may not be the right path for all divorcing couples – particularly in instances where domestic abuse is present, judgment is impaired by drugs or alcohol or a spouse is hiding assets – it does have significant advantages over courtroom litigation for many people.
Some of the advantages are:
It’s usually cheaper. Many sources estimate that mediation typically costs from 70-90 percent less than litigating a divorce. Saving money on the resolution of the divorce leaves more assets to be divided between the spouses.
You set the schedule. Mediation allows the parties to select a time that works for everyone involved instead of depending on a court docket that can have frequent scheduling conflicts and delays. This typically means that a divorce can be resolved more quickly in mediation than it can be through the court system.
No formal procedures. Unlike a trial, mediation is flexible. Technical procedural rules do not dictate the process. This permits the parties to set comfortable ground rules. It also allows the parties more time to tell their stories, as opposed to going before a judge who might rush through the case to get to the next matter on the docket.
It’s less adversarial. The goal of mediation is to reach an agreement on the issues that must be decided when a couple splits up. The parties must work together to reach solutions that they both can live with. This goal makes it unnecessary to engage in legal posturing. It also shifts the focus away from things that happened in the past and toward finding an acceptable way for the parties to deal with each other in the future. That’s especially important when children are involved and the divorcing spouses will need to remain in each other’s lives for some time to come.
You make the decisions. In courtroom litigation, a judge hears testimony and arguments and then makes the decision that she or he thinks is best for you. This leads to outcomes that are uncontrollable and unpredictable even if your attorney can give you some general idea of what the court is likely to do. It’s different with mediation, because no decisions can be made if you don’t agree to them. You are empowered to negotiate acceptable solutions. You are not forced to follow what a third party prescribes for your situation.
It’s better for the kids. Avoiding an ugly courtroom battle has benefits for the children, who are less likely to wind up as pawns if their parents are able to negotiate child custody, visitation and support issues in mediation. The process is typically healthier for the dissolving family. Mediation encourages the parties to communicate better. That’s a skill that will be important as the divorced parents continue to deal with each other in the process of raising the children after the divorce.
It’s informal and non-threatening. Mediations typically are conducted in comfortable, private conference rooms instead of in the imposing halls of justice at the local courthouse. For many participants, there is less fear. They do not have to face the authority of the court and stand in front of a sometimes crowded and usually public courtroom. In mediation, the parties are able to work out their conflicts in a fairly private setting in front of only the people who need to be there.
Creative solutions are encouraged. Mediators encourage brainstorming processes. They are skilled at helping couples think up ways of settling issues that might be novel or specifically tailored to their unique situation. The practice is different in litigation, where an experienced family law judge might apply a standard, tried-and-true solution that might not take into account the peculiarities of your family.
You retain confidentiality. Everything that is said and done in mediation remains confidential. Only the settlement itself must be filed in court. That means you are able to discuss matters during mediation that you might not want your friends and neighbors to find out about. It’s not the same in litigation, where the courtroom is typically open to the public, as are the records.
The settlements are more likely to work. Because the agreements reached in the mediation process are the parties’ own, they are more likely to adhere to them in practice. Some studies show that mediated agreements have much higher compliance rates than ones imposed by the courts, requiring fewer returns to court for enforcement orders. This is true probably because both spouses are more likely to be satisfied with the agreement since they played an active role in developing it.