Mediation vs. Litigation
When should I consider mediation?
I recommend that parties first consider mediation, because if it suits your family, mediation will save significant money, time, and emotional energy. Mediation is the appropriate process for resolving most family law disputes. For more than a decade I have worked with families to assist them with navigating changing dynamics, including:
- Divorce with minor children
- Divorce without minor children
- Parentage matters – non-married parents of a minor child
- Partition – separating non-married parties who created joint assets and/ or debts
- Grey divorce
- Child support establishment
- Legal separation
- Annulment
- Child support modification
- Parenting time modification
- Adult siblings who dispute their elderly parent’s needs & necessary level of care for their health and safety
- Post-divorce modification
- Spousal support modification
- Separated parents of a child with special needs turning eighteen (18) years old and who needs:
- Guardianship
- Conservatorship
- Designated payee status
- Spousal support abatement
- Grandparent access schedule
- Adult sibling disputes regarding the division of a deceased family member’s estate when the family member passes away without appropriate estate planning documents.
When might litigation be necessary?
There are issues that may require the parties to hire attorneys and litigate disputed matters.
1. A party’s refusal to disclose.
Mediation is based upon the premise that the parties are operating in good faith and providing full disclosure of the marital estate and their respective incomes. If one party behaves as a gatekeeper and refuses to provide the other with necessary documentation of and education about the marital estate, their income, assets, and/ or debts, then attorneys may be necessary to equip the other party with a full understanding of the financial accounts and incomes.
In this type of dispute, attorneys create “formal discovery” requests. Formal discovery is a court monitored process of compelling the other party to provide specified documents and information within an established amount of time.
Once the parties believe formal discovery has sufficiently informed both parties of the holdings, incomes, debts, and liabilities, the parties may then choose to participate in mediation. The parties may continue with their attorneys and participate in attorney-assisted mediation wherein the attorneys are physically present during the mediation session. The parties may choose to participate in mediation with their attorneys available to respond to questions or concerns.
Litigation may be necessary if a party refuses to comply with formal discovery; is not willing to disclose their assets or debts, the extent of ownership in a co-owned business, their income, bonus, or commission schedule, and other information necessary for both parties to be fully informed; or may be attempting to hide assets or debts.
2. A parent’s inability to safely parent the minor child(ren).
If a parent believes the other is unsafe with the minor child – and the other parent does not agree that they have engaged in unsafe behaviors – mediation may not be the best option.
However, if a parent in recovery, for example, acknowledges their disease, it is possible for the parents to agree upon a parenting plan. This may include a stair-step accessibility plan which includes random or scheduled sobriety testing or other accountability methods before starting parenting time. Transparent testing in combination with a well drafted stair-step accessibility plan – based upon the parent’s real time recovery – can ensure the child enjoys healthy access to both parents while ensuring the parenting time is conducted in a healthy environment.
