Divorce Mediation Vs Litigation – Which Should You Go With?
Few life events are as emotional and challenging as separation and divorce. Arizona’s divorce and custody laws recognize that couples and families are better served when emotions are less charged and have developed a framework to support Alternative Dispute Resolution (ADR) to avoid protracted litigation.
The attorneys at Lawrence & Jecmen, PLLC, strongly endorse ADR approaches. Our Collaborative Divorce and Mediation Services provide a better way forward for many separated spouses and their families who can put animosity aside and work out their differences without involvement from the courts. “There are only two ways issues in a divorce case get resolved”, says Andi C. Lawrence, partner at Lawrence & Jecmen, PLLC, “by agreement or by the judge making the decision for you.”
Mediation and Collaborative Divorce are Types of Alternative Dispute Resolution
ADR includes different ways to settle custody decisions and divide marital assets without expensive court appearances. These methods allow for flexibility to provide creative solutions that may not be available to the court. In some cases, a Judge may order parties to participate in ADR prior to a scheduling trial.
Collaborative Divorce and Mediation are two types of ADR used in Arizona. Both support the goal of keeping divorcing parties out of court and trying to work toward settlement in private meetings. Lawrence & Jecmen encourage and support clients using either type of ADR service. The two are quite different from one another.
- Mediation costs much less than divorce litigation, which can get expensive and stressful with repeated court proceedings. It works best when partners are amicable and have a similar knowledge of the family assets and debts.
- Collaborative Divorce is also less expensive than litigation, although it has more up-front expenses than Mediation, says Lawrence & Jecmen partner Andi C. Lawrence. But it offers benefits that can be overlooked in mediation, including financial advice clients might not otherwise receive, and it reduces the prospect of future litigation and expenses related to the divorce.
Collaborative Divorce is a Team Approach to Support Clients
A Collaborative Divorce is run by a team of trained and certified professionals for each side:
- A divorce attorney
- A financial advisor to review community (marital) assets and debts
- A coach who supports the emotional aspect of the process
- A child specialist who helps the parties focus on making decisions that are in the best interests of the children
“This team approach ensures that clients get advice that might otherwise be overlooked,” says Lawrence, who is a collaboratively trained divorce lawyer.
Both parties to a divorce must agree on this approach from the outset. The teams work together as a committee to reach a settlement on all the issues raised. Coaches remain neutral on issues of children and finance and serve with the intention to reduce stress and keep the well-being of partners and any children in mind.
Arizona’s Family Law Statutes Specifically Address Collaborative Divorce
Collaborative Divorce was adopted by the Arizona Legislature in 2015. As a practice, it’s been around since the 1980s.
It is considered one of the best ways to ensure both parties get the best advice and representation possible. Here are a few reasons a spouse may request this approach:
- It avoids a dominant partner taking over a mediation
- The spouse doesn’t necessarily believe a partner would mediate in good faith
- There are communal assets that can’t be easily divided
- There are disagreements over child-rearing practices
- The parties have unusual assets and would benefit from a wholistic, creative approach
Mental health coaches can help diffuse tensions around issues and situations that would otherwise stand in the way of the parties reaching an agreement. Financial advisors help clients understand different scenarios for settlements and ensure they understand them before agreeing.
“Initially, Collaborative Divorces followed pretty stringent rules,” Lawrence says. However, new models are emerging that are less rigid than the original framework.” “Even now, if the process breaks down, everyone on the team must step away from the case and the two parties have to start over with new representation.
There Are Two Ways to Use Mediation to Settle Issues Before Divorcing
Most people have some familiarity with mediation since it can be used to settle all kinds of legal disputes. There are two ways to use mediation to prepare for a divorce.
- No attorneys are present and both sides agree to work with an agreed upon paid mediator that the parties jointly select. Parties can consult with divorce attorneys outside mediation. Mediators can provide a lot of practical assistance as well as facilitate settlement discussions and help with required paperwork.
- Attorneys are present for both sides at mediation and work with a mutually agreed upon paid mediator.
Some divorcing couples try the no-lawyers approach before hiring lawyers for either type of mediation.
Mediators are often trained in conflict resolution and are well-versed in Arizona divorce laws. Many mediators are divorce lawyers or family law judges themselves. The role of the mediator is to encourage discussion and help parties reach solutions that work for both of them. Mediators do not make decisions for either partner.
Both Lawrence and her partner Tabatha A. Jecmen, who is a Certified Family Law Specialist, provide mediation services independent of their law practice. When they are representing clients interested in mediation, they turn to their professional networks to identify well-versed mediators.
“Most people in a divorce do agree on a few issues,” Jecmen says, “and we strive to settle divorce cases out of court, even if our client doesn’t get everything they initially stated they wanted.”
For both these approaches, mediators are hired independently of attorneys. An attorney cannot represent a client and act as a mediator in that client’s case.
Going to Court to Litigate a Divorce Can Be Risky
Any venture into a courtroom comes with risks because “you can never predict with certainty what a judge will decide,” Jecmen observes. “Litigation is unpredictable and rarely addresses every issue in a divorce.”
Judges overseeing litigated divorces are confined by Arizona’s statutes regarding division of assets and debts. They are restricted in coming up with creative solutions, which would be available in mediation.
➤ Read more about community debt and assets
Divorce trials are actually pretty uncommon, largely because of the financial and emotional expense. They require a lot of preparation which still may not necessarily result in the outcome a client wants. Getting to trial can also take a long time, if courts are backed up with a lot of cases to hear and adjudicate, as they are in Maricopa County, where Family Court judges have little time for trials. This is one reason why judges may order parties to consider ADR.
“People think that they are going to be validated by a divorce trial,” Lawrence says. “But they won’t be. A divorce trial is expensive, financially, and emotionally. It brings a lot of anxiety.”
➤ “Divorce trials are expensive and take an emotional toll. They aren’t what you see on TV.” – Andi C. Lawrence, partner, Lawrence & Jecmen PLLC.
Lastly, divorce trials are public, which can negatively impact reputations and cause further strife if they are acrimonious. Divorce trials that get a lot of publicity can be particularly difficult for children. Although there are occasions when a divorce trial may be conducted in a closed courtroom, there are only limited situations when the Judge would find that appropriate.
ADR, on the other hand, allows the two parties to control the settlement process, and the outcome. Going to court takes away a lot of that control and certainly, any creative approaches that work best for divorcing spouses and their children.
Is Litigation Ever a Good Option?
While we try to encourage out of court settlement, we understand there are times when litigation may be the best option for a client. It may be that a spouse is involved in criminal behavior, including domestic violence or substance abuse, and refuses to cooperate in the divorce process. In these situations, a trial may be necessary, and evidence of the criminal behavior such as prior convictions would be presented to the Court. Litigation tends to be a slow process, not only because it takes time to gather information, but also because the Court’s docket is overwhelmed with filings.
It is recommended that divorce litigants follow these rules:
- Practice your side of the story.
- Limit communication with your ex and do not discuss any legal matters with them. Let your attorney handle that.
- Listen closely to questions posed to you in the discovery process and in court and only answer what is asked. Don’t try to pile on explanations.
- Show up to court dates on time.
- Listen to your attorney!
Understand that litigation is a last resort for you. It is the most difficult and expensive way to end a marriage.
How effective is litigation?
In litigation, there is no negotiation between parties. Decisions are made by a judge based on what has been presented to the court. There is the potential that both parties may end up dissatisfied.
ADR is a give-and-take process in which both parties agree to a final outcome. This is eliminated with litigation, where a judge has the final word. It’s very difficult to predict an outcome from litigation, even when attorneys are familiar with judges. What we can say is that Family Court judges review the evidence they have, including sworn testimony, and follow state law and case law when making decisions.
Alternative Dispute Resolution is Less Stressful for Couples and Children
We strongly believe collaborative divorce and mediation are much less stressful than litigation. While this may sound like a “soft” benefit, it delivers positive results that can actually strengthen frayed family ties.
- ADR provides direction to settle custody and marital estate division. ADR provides a clear platform to continue or start conversations about child custody, assets, and debts. Many times, couples become surprisingly congenial during these conversations. They are also far more likely to make better decisions for themselves and their children in lower-stress environments.
- ADR creates a safe place to discuss difficult issues. A platform for conversation can considerably reduce tensions even when difficult problems arise. We all fear the worst outcomes when we raise thorny issues; however, we’ve seen over and over again that a calm environment mitigates so many problems and produces better outcomes.
- ADR reduces the time to finalize a divorce. The family courts in Maricopa County are overwhelmed with paperwork and pending cases. As a result, it can take months to schedule a divorce trial, and in many cases, judges will order the parties to attempt ADR.
Remember, divorce is stressful for most children, even those too young to fully express their emotions. Their stress is magnified when parents are also stressed. Children do best when parents can remain calm and cooperate with one another.
Can I request ADR if my spouse lives in another city or state?
Yes. ADR can be done virtually if both spouses can’t be in the same physical location.
I don’t know where my spouse is living or working. Can I still use an ADR process?
ADR will not be possible if both parties are not able to participate, however there are other ways to finalize your divorce. Courts cannot require people to remain married. If a spouse wants to divorce an absent partner, they must document their attempts to locate the missing spouse. The court will require a certain amount of time and attempts before it will grant a divorce by default.
Avoid Litigation When You Can
Some spouses who seek to end their marriage may think that a court is their best chance for a fair result. We have seen how Mediation and Collaborative Divorce are much more likely to deliver fair and equitable settlements, with far less financial and emotional costs.
If you are facing separation or divorce, the family law attorneys at Lawrence & Jecmen are here to provide straightforward legal advice backed up by experience and skills to support you in and out of court. Contact us today for a consultation.