CONSIDERING A DIVORCE? MEDIATION VS LITIGATION
What You Should Know Before Filing
Lisa M. Watson, MA

‘Conflict Is Inevitable, But Combat Is Optional” Max Lucade

Divorce is a stressful event in people’s lives whether or not they are the initiating party.  Emotional and financial concerns often intensify as a one-home family is converted to two.  This translates to double the bills when money is likely already tight, and interrupted contact with children during an adjustment period that typically feels lonely and stressful to begin with. 

People generally divorce in part due to the elevated arguing and blaming within their relationship.  Unfortunately, the process of splitting often generates more of the same.  There are times when a custody battle seems inevitable, and in fact litigation has been traditionally toted as the first line of defense in negotiating and finalizing divorces.  Fortunately, times are changing and there is now a court-approved, professional, healthy, efficient and cost-effective alternative to divorce litigation;  Divorce Mediation.

First, let’s take a moment to consider the traditional route;  the adversarial, stressful and exceedingly costly process of litigation. In a 2005 issue of SmartMoney, the estimated average cost of a divorce in the United States was reported at $15,000 with a settlement time-frame of over a year.  In urban areas, charges often mount to between $18,000 and $25,000 per spouse with an even higher price tag for extremely complex cases involving custody and/or asset disputes.   More astonishingly, in Cook County it can take 3 years or more to finalize a complex divorce.  The courts are overburdened and delays are inevitable. 

What seems to be a rather simple case with few disagreements often becomes escalated and intensified, lasting much longer than is necessary or advisable.  To make matters worse, when divorcing couples can’t agree on issues such as child custody, the judge mandates a decision which often isn’t agreeable to either party.  Some people go into trial with the expectation that the judge will choose sides.  They truly believe that they are entitled to their position, and are banking on the fact that the judge will concur.  What they don’t know is that this is very rarely the case.  Often the judge’s decision can seem arbitrary, ineffective and inconvenient to both parties in the end.  Judges are human too, and it is impossible for them to understand your family situation to the degree that you do.  They consider the case within the framework of the law, however, their decision is also influenced by their own experiences and biases. There is frequently a great deal of regret once a judgment is rendered.  Unfortunately, at that juncture the parties are no longer in a position to control their own lives. 

In other divorce situations, people just want out.  They are willing to give up everything just to make the conflict go away.  Frequently, as time passes they come to a place of regret.  Perhaps they don’t miss the physical assets, but wish they had more time with the kids.  Perhaps they agreed to a custody arrangement which really isn’t feasible long term, or which has proven logistically difficult for all.  Unfortunately, fighting for these rights post-divorce can be far more complex than during the initial proceeding.

Here’s the good news:  There is now a court-approved professional alternative to traditional divorce litigation and post-divorce modification which will save you untold amounts of money, time and stress regardless of the complexity or simplicity of your situation, regardless of whether you are already in the process of litigating, just beginning the process of divorce, or revisiting decisions of the past. 

Divorce Mediation is increasingly respected by judges and divorcing parties alike as a more humane, efficient and exceptionally cost-effective means of negotiating divorce which leaves the control in the hands of the divorcing couple.  Divorce mediation is a non-adversarial process in which the divorcing couple works with a neutral third party to settle the issues of divorce potentially including but not limited to:  custody (parenting schedule, education, day care, decision-making, traveling, moving, religion, emergency care, discipline), child support, spousal support (where applicable), asset division and distribution (home, personal effects, household items, inheritance, cars, land, savings/mutual funds accounts, retirement benefits), debt division (credit card, loans), taxes, future modification plans etc.  The divorcing couple works together to determine their future in a financially sound manner rather than breaking the bank to fight against one another in the hopes that they might “win”.   

More and more couples are working with a Professional Mediator first, and subsequently either filing independently or obtaining a referral to a Mediation-Friendly attorney simply for the purpose of reviewing and filing the paperwork. Both parties are significantly happier with the results of a divorce when Mediation is employed, even in highly conflictual cases which seem to be intractable prior to Mediation.  Furthermore, the negative effects of divorce on children are dramatically decreased when Mediation is utilized in place of traditional litigation and a protracted court battle.

Illinois now mandates Mediation for divorcing couples who can’t agree on custody issues, even if they are following the traditional litigation path.  More often than not, these couples come to agreement even after months or years of conflict and dispute.  The difference is, they have spent a significantly larger amount of time, money and stress on litigation before they ever got to Mediation. 

There are many benefits to beginning the process of divorce with Mediation rather than streamlining through the litigation process.  Litigation is inherently adversarial and promotes distancing behaviors rather than cooperative problem-solving.  Attorneys are trained to fight for you, and in order to fight they must have an enemy.  From the outset, your spouse is deemed the adversary which significantly diminishes the likelihood of a cooperative outcome that suits the needs of both parties and their children.  As time goes on, discord intensifies and what little working relationship remains between the parties deteriorates.  This is truly unfortunate for those who have children together, as they will still have to deal with one another regularly once the divorce is settled.  Often people get so caught up in the battle that they lose the ability to recognize themselves or their own motivations.  They just know that they want to win…or, more importantly, they want their ex-spouse to lose.  You now have the unique opportunity to learn from the mistakes of others.  The value of hindsight is revealed in the Voltaire quote, “I have never been ruined but twice: once when I lost a law suit, and once when I won one.”   The burning question becomes, would you rather try to “win” a battle which yields no real winners, or establish the grounding necessary for future happiness?
 
Mediators recognize that the stress of divorce tends to bring out the worst in people.  Rather than further aggravating an already stressful situation, the Mediator seeks to diffuse frustrations and orient both parties toward productive future-thinking and communication.  While navigating a divorce, the idea that feelings of pain, disappointment or anger could ever be released can seem elusive at best.  There is often the temptation to seek revenge; to do what you can to make your ex-spouse miserable.  You certainly have that option through the litigation process.  While this type of behavior might bring some immediate gratification, it has tremendous unavoidable short and long-term implications (both financially and emotionally) for you and your children.  Unfortunately, the damage incurred has a lasting impact which inevitably extends into other aspects of life, and more often than not the children are the ones who pay the highest price.  Mediation provides divorcing couples the opportunity to “choose” not only their future path, but also their health and happiness both long and short-term, as well as that of their children.  It provides the opportunity for parents to feel that they were truly able to honor their children and make the best of a bad situation for their sake. While this idea may feel challenging to digest initially, it brings tremendous long-term rewards.

As was mentioned previously, litigation is costly.  In fact, it is far more costly on an hourly basis than Mediation and it takes a great deal longer.  Judges advocate for mediation by reminding litigants that they can either put their own children through college, or put their attorney’s children through college.  When litigating, you are charged substantially for every court visit, even if it is only a check-in or court delay…for every phone call, every e-mail, every piece of paperwork, every negotiation and/or relayed conversation between attorneys, etc. etc.  Mediation not only carries a more affordable hourly rate, it also provides more desirable results much more quickly.  The coupling of these aspects translates to significant savings and satisfaction. 

Mediation is substantively controlled by the parties and can be conducted in full day sessions or, perhaps preferably, in several consecutive chunks of time (usually approximately 2 hours in duration) over the course of a few weeks or months depending upon the complexity of the case, the desire of the parties and the availability of the Mediator.  The parties not only maintain control over the outcomes of their future and the future of their children, but also how long the divorce process itself takes. 

Nothing is put into writing until both parties agree fully.  No one is pressured into agreement.  Instead, options are explored and tailored to meet everyone’s needs.  At the conclusion of Mediation, the Mediator draws up an official document called a Memorandum of Understanding (MOU) which contains only the agreed upon issues.  This MOU can either be submitted to the court in conjunction with pro no se  (do-it-yourself) documentation or converted into a “Settlement Agreement” by an attorney. 

It is worthwhile to mention that while it can seem cost-effective to file the MOU and other divorce documentation independently, there are risks involved.  You will be responsible for navigating the other paperwork independently, and it can be complex.  Mistakes have proven to be both costly and time consuming.  Additionally, filing independently means the revocation of the right to representation.  While a Mediator can provide a comprehensive “Memorandum of Understanding”, they will not provide legal advice to either party.  One of the foundational components of Mediation is the Mediators ability to remain neutral.  This allows each party the security to know the mediator will not judge or take sides at any point during mediation, and is fundamental to the success of the process.

Mediation-Friendly attorneys support the process of Mediation, and typically charge a lower hourly fee due to the substantial decrease in their required work load.  It is likely that only a few hours of attorney time will be needed in cases where Mediation is utilized to settle most or all of the issues of divorce; quite a substantial decrease in comparison to traditional litigation.  Many people feel these limited attorney services are well worth the reduced fee due to the amount of stress and time saved.  Some people also find it reassuring to know that the paperwork is flowing through professional channels rather than being downloaded off the internet.  Most Mediators have a list of Mediation-Friendly attorney referrals and will direct you to representation which will take good care of you.  Mediating the divorce and filing through an attorney is now the route recommended by most judges.

Even if there are one or two issues which cannot be resolved in mediation, whatever is left on the table can be litigated in the traditional fashion and nothing will have been lost.  In fact, significant amounts of money and time will have been saved along the way.  Of equal importance, the judge will know and appreciate that Mediation was initiated independently and that you made every effort to amicably settle before bringing the matter to court.  Since the content of mediation is confidential, there is no concern about negatively influencing future court decisions.  With the use of mediation it is highly unlikely that a divorce case will ever get to this point, as only 5% of divorces ever go to trial.

Mediating a divorce rather than litigating allows both parties to avoid the bitterness and hostility typically associated with the process of divorce.  Everyone benefits in the end, perhaps most importantly, the children.  Mediation offers the opportunity for you to dissolve your divorce professionally, quickly, privately and inexpensively.  Working with a Mediation-Friendly attorney to submit the paperwork provides efficient legal representation at a fraction of the cost.  Judges are now strongly recommending that divorcing couples avoid litigating their custody dispute if at all possible.  As a Cook County Judge stated to a group of mediators, “Divorce court is ugly, and no one walks away happy.  Encourage everyone you can to mediate.” 

The court battle is inevitably ugly, people feel exposed, and the results rarely reflect any one person’s desires, let alone the best interests of the splitting family as a whole.  The Max Lucade quote which opened this article could easily be dubbed the motto of Divorce Mediation: “Conflict Is Inevitable, But Combat Is Optional”.  Litigation isn’t your only option.  Now, you have a choice.       

Lisa M. Watson, M.A., is a Professional Mediator in the area of Family Law.  She provides Mediation & Conflict Resolution services in Chicago and various locations within the surrounding suburbs.  Her primary office is located in Flossmoor, Illinois.  For more information about Mediation please visit www.LMWatson.com or call Lisa at 773-617-2013.  Lisa provides free, confidential Mediation consultations and Mediation-Friendly attorney referrals.