Mediation vs. Litigation in Family Law

Mediation vs. Litigation in Family Law

Sometimes litigation is the only option for couples whose issues can’t be resolved through other means. After all, being unable to agree on terms may be what led to the divorce in the first place. But when emotions run high, it’s helpful to remember that there are other options for couples hoping to keep their divorce out of a courtroom. Mediation is a common alternative form of dispute resolution that, if appropriate, can be less costly and lead to quicker outcomes.

Divorce cases that go to court tend to be more drawn out, which can become emotionally draining if you’re not prepared for what’s to come. Yet some clients are initially hesitant to try mediation or other alternative forms of dispute resolution because they’re unfamiliar with the process or unaware of its potential benefits. If you’re unsure which road to take, your lawyer can help you understand how each option works and what it could mean for you and your family.

Why Use Litigation in an Illinois Divorce?

Nowadays, a minority of divorce cases do still end up in family court. When other alternatives aren’t an option or haven’t worked, courtroom litigation becomes the default method for couples to reach a fair agreement. This usually happens for one of three reasons:

  1. The two parties can’t agree on the terms. Sometimes the divorcing spouses either can’t or choose not to compromise on key terms such as division of property or spousal support.
  2. At least one high-conflict personality is involved. High-conflict people are excessively combative and therefore much less likely to come to an agreement through alternative methods.
  3. Serious issues prevent alternatives. Domestic violence, substance abuse, and other serious problems can make mediation less likely and possibly even unsafe for one of the parties.

If you decide to pursue litigation, it will be up to the court system and judges to resolve your disputes. Just keep in mind that there’s a higher likelihood that the parties will treat each other as adversaries, which can be stressful for some families. With a judge overseeing your case and trial dates set in advance, the process can also be more rigid than other methods.

What Happens in Mediation?

In mediation, the couple selects a mediator – a neutral third party whom they trust to help them resolve their disputes. Legal representation isn’t typically required. The mediator meets with both sides to help them negotiate a settlement that’s in the best interests of everyone involved. The aim is to settle the divorce as efficiently and amicably as possible. With no judge present, couples get more control over the steps they’ll take toward reaching a settlement.

If you chose this route, your mediator will help you resolve everything from child support, spousal support, and parental rights to the allocation of debt and assets. Both sides are expected to work together and take reasonable positions. Some couples make the mistake of assuming their case is too complex for mediation. However, the right mediator should be able to facilitate the terms of your divorce case:

  • Help spouses identify issues;
  • Facilitate communication;
  • Discuss possible resolutions;
  • Develop parenting plans;
  • Value assets;
  • Help parties negotiate mutually agreeable solutions; and
  • Create financial agreements.

Alternatives May Offer More Privacy for High-Asset Couples

Avoiding a trial can be particularly desirable for higher earners hoping to keep their complex financial situation private. Many people aren’t aware that, once a case is filed in an Illinois court, elements of it go on the public record. While sealed records are not available to the public, the judge will have ultimate control over granting this request. This lack of privacy can be a deterrent for divorce cases involving the valuation and division of significant assets.

There are other alternatives for couples seeking a divorce, and an experienced family law attorney can help you determine which one makes more sense for your situation. For instance, in a collaborative divorce, the parties do retain their own divorce attorney. But, as with mediation, there is no trial or litigation. Both sides sit down in a private setting, and with the counsel of their respective attorneys, negotiate the terms of their divorce on their own.

If you need a more thorough understanding of your divorce options, call the Law Offices of David A. King, P.C. at 630-504-7210 or contact us online. Our attorneys are highly experienced in every type of divorce proceeding and can walk you through the process of your choice. If we must litigate on your behalf, we have the resources and skill to effectively present your interests in court, as well.


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