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You may have heard, “I’ll see you in court!” in television or the movies. Despite what Hollywood suggests, parties to disputes have several alternative (more peaceful) options to resolve their disagreements such as the alternative dispute resolution methods of mediation or arbitration. While other methods are rarely as riveting as the cutthroat nature of a courtroom drama, they tend to be more efficient, less expensive, quicker, and more amicable.
You might not have a choice in a highly contentious divorce, or you might prefer to leave the terms of your divorce in the hands of lawyers and judges. But how do you know which method is right for you? Here are some ways in which mediation and litigation differ:
Massachusetts Divorce Litigation involves court processes to resolve a dispute according to Massachusetts law. The court processes governing litigation are exceedingly formalized. On the other hand, divorce mediation is an informal and confidential way for spouses to negotiate their divorce agreement with the gentle guidance of a certified MA divorce mediator.
Judges/Attorney v. Mediator
Judges hear a litigated MA divorce case. While many divorcing spouses want their stories to be heard in court, most judges are disinterested in dirty secrets, expressions of emotions, or reports of foolish conduct during the marriage. Their time is precious and they mainly want to make decisions about equitable property distribution and in the best interest of any children.
Many people feel the need for professional assistance to guarantee they are getting a fair agreement and that their best interests are being protected. Attorneys are obligated to zealously represent their clients in their role as advocates.
A mediator is a neutral third party who is professionally trained to help divorcing spouses thrash out their differences and narrow the issues. Mediators do not judge a case but merely act as a guide and assistant. Sometimes lawyers can twist facts and are certainly known to zealously argue points. Mediators facilitate an eventual resolution by ensuring that both parties have all the information that they need to negotiate their case. Mediator deal directly with the parties so can focus their attention on each party’s particular interests and needs.
A judge issues a court-sanctioned, mandatory divorce order that involve legal consequences when a party does not comply with its terms. Mediation is voluntary and non-binding. A mediator does not issue a decision, or determine who is right or wrong. He/she merely helps the parties work our their our resolutions.
Your attorney will fight on your behalf, but might not fully understand what your goals are, or develop a strategy of which you approve. Parties in mediation have a greater say in negotiations and greater control over the outcome of mediation over litigation. The details of a mediated agreement are more easily predicted. You have more personal power and control negotiating your own settlement when your fate is in your own hands rather than those of your lawyer or the judge.
Level of Involvement
Parties are more personally engaged in mediation than in a procedure-driven, attorney-run courtroom environment.
Mediation is almost always less expensive than the average lawsuit. It costs significantly less to hire a mediator than an attorney. Some organizations provide mediation services for certain disputes at a minimal rate.
Massachusetts divorce litigation fosters a tooth-and-nail battle for assets and custody, and the stakes are huge! Lawsuits are about winning, and parties often enter the courtroom with swords drawn. Divorce mediation steers clear of the combative model of litigation. It involves far less drama compared to sensational trials. Parties feel better after having gotten “things off their chest” and hearing the other party’s point of view in the neutral, fair, more relaxed setting of mediation. This serenity may persuade parties to forgo or discontinue hostile litigation.
A contested divorce case can take months to years to conclude, while the mediation process usually only takes a few months, including scheduling the divorce mediation sessions, negotiation, and drafting of the divorce agreement. A quick, reasonable timeline allows both parties to agree more quickly and cooperate in the future without needing to resort to adversarial means.
Regardless of which method you choose to negotiate your divorce, you are always free to settle your dispute with your soon-to-be-ex-spouse prior to — or even during — the contested divorce process or divorce mediation process. If parties are unable to come to terms through mediation, they are free to seek recourse through litigation. Mediation is an excellent “Plan A”.