When to Choose Divorce Litigation Over Mediation
When someone recognizes that their marriage is over, they’re often counseled to consider mediation to work out the terms of a divorce. There are many pros and cons of divorce mediation. Compared to litigation, mediation can allow divorcing spouses to retain greater control over the divorce process, close matters faster, keep the details of their agreement private, and reduce costs. However, mediation doesn’t always work. Worse, pursuing mediation when it’s clear there’s little chance of cooperation is a waste of time and money that only serves to increase the stress of the divorce.
Circumstances in a relationship can help predict if someone seeking divorce will be better served by opting for litigation instead of mediation. Understanding what’s required for a successful mediation, as well as red flags that can signal when it isn’t worth trying, is essential to finding the right legal strategy that will produce an effective resolution.
At Hart Ginney LLP, our experienced divorce attorneys recognize the signs that indicate whether litigation or mediation is the right move, thus helping save our clients from the heartache, frustration, and expenses of negotiating with an ex who isn’t engaging with the process in good faith. We’ll vigorously advocate for your rights in court with a focus on achieving a resolution that allows you to move on with your life.
What Does Successful Mediation Require?
Whether mediation or litigation is right has little to do with the complexity of the property division, support, or child custody issues to be resolved. Instead, it’s a matter of the attitude of the two parties involved. When ex-spouses can engage in negotiations with transparency, respect, and a willingness to compromise, mediation can work to hammer out a mutually acceptable settlement agreement, especially when they have shared common goals, such as maintaining a civil relationship for the sake of their shared children.
The key is that both parties must be able to work together. When this isn’t the case, it doesn’t matter how much one spouse wants to settle things easily and amicably. No number of one-sided concessions can produce a fair agreement. If your ex won’t engage with the process in good faith, mediation will achieve nothing but delay the ultimate resolution of your divorce case, and you’ll still end up in litigation.
When Mediation Won't Work
What are some of the signs we look for when we counsel clients to avoid mediation in divorce cases? Some are obvious. In high-conflict situations or in instances where there is a history of domestic abuse, mediation is not a good idea. This can also include relationships in which there is a history of coercive control, like through financial abuse. Abusers will often attempt to use the divorce process to continue exerting control over their victim, and going through mediation only allows them to drag their victim’s ordeal out longer. (More on this below.)
Another big warning signal is if it’s suspected that a spouse is being deceptive or committing fraud to try to claim a greater share of marital assets than they’re entitled to. Mediation involves voluntary disclosure of each party’s assets—if you think your spouse is being untruthful, you will need to go to court (and possibly enlist the aid of forensic accountants) to ensure that any hidden assets are uncovered.
What Is Litigation Abuse?
Another danger when you’re dealing with an ex-spouse who is angry, vindictive, and unwilling to accept that you’re committed to moving on without them is litigation abuse. This tactic can catch many people—and inexperienced attorneys—off guard, miring them in a seemingly endless cycle where every minor step of the legal process turns into an exhausting fight.
What does this look like in practice? Your ex may have their lawyer submit unreasonably long and broad discovery requests, ask irrelevant questions, make unreasonable demands, or continually submit motion after motion to overwhelm the court and slow down the proceedings. It may seem to make no sense that they’re willing to run up their own legal bills as they’re running up yours. However, spouses who engage in this tactic aren’t focused on resolving the fundamental financial and custody issues that will allow them to finalize a divorce. They are weaponizing the process against you.
Unfortunately, even if you are braced for your spouse to retaliate through the legal system if you attempt to leave the relationship, you can still struggle to escape litigation abuse if your attorney is unprepared to recognize the pattern and act effectively. At Hart Ginney, our track record with high-conflict divorce makes us effective advocates who can help you take back control and refocus the legal process on resolving the issues that matter.
Experienced Family Law Litigators in the Bay Area
Every divorce is different, and deciding the right path to end your relationship and set the stage for your post-divorce future depends on your circumstances. The expert attorneys at Hart Ginney can provide the insight and clear-sighted guidance you need to determine if litigation is your best option. If you are already dealing with a divorce case that has run off the rails because of your spouse’s refusal to cooperate, we can help get the proceedings back on track.
To schedule your consultation, call us at (510) 628-0250 or fill out the form below.
