When dealing with a divorce, there will be numerous issues that the divorcing spouses will have to resolve. Therefore, the question becomes, how do you do that? With that said, there are only two options you can choose from. The first one is the most common, and that is when the spouses solve their issues through an agreement. Ninety-five percent of cases are resolved at some point by the parties coming to a mutual understanding, which means they agree in some manner in how they handle all the broad strokes that comes with a divorce. These agreement issues include their property settlement, their retirement accounts, child custody, and support issues. For the other 5 percent that is not able to agree, that is where you will have the judge settle the problems for the spouses.
When the judge has to settle the case, this is when they will have to go to trial. For spouses who agree, it poses the question of how did they come to that agreement?
Traditional Litigation Process
The first way is the traditional litigation process. The litigation process is when both parties decide to get a divorce attorney, and they go through a formal proceeding, negotiating, and ultimately reaching an agreement. The traditional litigation process is the default model for agreement, and it’s the process that the majority of people tend to think of when getting a divorce. The traditional litigation process is a formal process. Therefore, you will have an attorney representing you as your legal counsel. So they will speak on your behalf, and unless you’re under oath, you do not have to speak to the judge, as your attorney will do that for you.
Furthermore, everything will go through your attorneys, such as correspondence, paperwork, and all the requests for discovery. So, if you decide to use another option, and you don’t feel comfortable, you do have the traditional litigation process to fall back on. However, it does have some drawbacks such as:
Adversarial Model – This means that litigation is set up as a traditional lawsuit since it is a traditional lawsuit. It’s plaintiff vs. defendant, and again both parties will have their divorce attorneys, and each attorney will have to follow specific criteria as they represent you throughout the process. As a result, you will be charged by your attorney for every step they take throughout this process, and in the end, can become very costly.
Coercive – The whole litigation process is based on being coercive. Coerciveness means that the actions through the litigation process must be compelled, and then judgments will be imposed.
Time-consuming – Due to all the back and forth between the two attorneys, time will get away from you very quickly in a litigated case.
So, after learning about the litigation process, if you find yourself thinking that this method may not be the best for you, then this brings on the question, what else can I do?
Mediation offers an alternative to resolving the issues that have been talked about above. It also allows people to stay out of the litigation track. When you choose to go with mediation, you’re deciding on an informal dispute resolution process. Instead of handling your issues inside of a courtroom, it takes place in a conference room, or some cases, one of the spouse’s homes.
With mediation, your mediator will sit down with you while your spouse will be sitting in another room, and all this will take place in a private setting. Furthermore, mediation is entirely voluntary. So, you’re not compelled to go to mediation. However, there may be times where the divorcing spouses are required to go to mediation on certain issues.
In divorce mediation, unlike litigation, the two spouses are the only ones making the decisions. Some people may think that when they go into mediation, they talk to their mediator, and then the mediator makes the decision, but that is not the case. Divorce mediation is where your mediator is there to help and support you, but the two spouses will make all the decisions through the mediation process.
Since mediation is voluntary, it costs significantly less than the litigation process. In addition, the two spouses are only paying the mediator, and it’s an hourly basis, rather than an all-encompassing representation that you will have throughout the litigation process. It’s also much less time-consuming. The two spouses will set up a timetable to meet, but you won’t be waiting on a judge or court time availability. This allows the spouses to move things forward more quickly and smoothly.
Mediation is much more private and confidential. Mediation takes place of your choosing and allows for a team approach. This provides you and your spouse with the best approach to work through the process.
During the mediation process, the spouses will go through three phases:
- Identify the issues
- Discuss the issues
- Agree on the issues
Utilizing mediation allows each spouse a safe place to communicate their problems and work towards an agreement in a more healthy and natural state. If you have any questions regarding mediation, a skilled divorce lawyer at the Sanders Firm, P.A. in Orlando will always serve your best interests.