What's the difference between divorce mediation and divorce litigation? (Part One in a Series.) This is a question we answer often. The exploration of this question is crucial to your decision making process as to how you approach your divorce process. The most important difference is that you get to decide the pace at which you proceed. You also get to decide the order that you complete the basic steps of the dissolution process.
We outline the three (3) basic steps of the dissolution process in our Divorce Flow Chart. It should be noted that the additional and often onerous steps of motions for temporary orders are not included in this flow chart as they are not used in mediation where we reach the temporary agreements for items such as custody, visitation, support, debt payment, and living arrangements in our office instead of having a Judge decide for you.
In a litigated case, you start by filing the Petition and having the Summons issued by the court. The other party is then "served" with these papers. This usually creates an emotional response in the non-filing person. Even when you are expecting the paperwork, being "served" and actually having the papers in hand creates an emotional response. You are now the "Respondent" and the other person is the "Petitioner." It is even more highly emotionally charged when you are not expecting the paperwork. The person being served is put into a defensive position. This leads to much anxiety and often a more severe response than may be necessary. They hire a "mean" lawyer who will "go for the jugular" and make the case way more expensive in terms of legal fees than is necessary. The person filing (Petitioner) then has to respond in kind and off you go on the "scorched earth" policy which burns through money and is emotionally destructive.
[The person that files the case is the Petitioner – as they are Petitioning the Court. The other person is the Respondent – as they are Responding to the Petition.] See Before You File from our DIY book CalDivorce123, A Client’s Guide to California Divorce for more details.]
To the contrary, in a mediation case the two of you decide together when to file the case and who the Petitioner will be. While this can still be highly charged, it is a mutual decision and so the emotional charge is less and noone is “served” out of the blue. Often the person instigating the divorce will be sensitive to the other person's feelings as to the timing. This creates a sense that they are working together and not against each other. The parties fees a sense of control about their divorce process. In a litigated case, the parties often feel out control. I think we can all agree that it’s much better to feel in control of your divorce process.
One of the most onerous parts of the divorce process is what we call Step Two -- the exchange of the Preliminary Declarations of Disclosure. This is a required process and most people procrastinate completing it -- it can be a great deal of work and inconvenience. In a divorce mediation, we often start with this step so the parties can be thinking about what assets and obligations they have that need to be divided before they even file with the court. An important part of this paperwork is page three of the Income and Expense Declaration which is the expense page. We ask the parties to use this as a worksheet for deciding how the incomes of the parties will be allocated so that each of them can maintain their lifestyles as close to the Marital Standard of Living as possible. This way the parties can be planning the next phase of their lives. By working together in deciding how the resources of the parties are going to be allocated the parties are again in control of their finances instead of having a Judge decide where the monies are going.
This is part one in a series. We will post the next part soon. We hope this has giving you initial insight into the differences of a divorce mediation versus divorce litigation.
If you have any questions, please contact us.
We outline the three (3) basic steps of the dissolution process in our Divorce Flow Chart. It should be noted that the additional and often onerous steps of motions for temporary orders are not included in this flow chart as they are not used in mediation where we reach the temporary agreements for items such as custody, visitation, support, debt payment, and living arrangements in our office instead of having a Judge decide for you.
In a litigated case, you start by filing the Petition and having the Summons issued by the court. The other party is then "served" with these papers. This usually creates an emotional response in the non-filing person. Even when you are expecting the paperwork, being "served" and actually having the papers in hand creates an emotional response. You are now the "Respondent" and the other person is the "Petitioner." It is even more highly emotionally charged when you are not expecting the paperwork. The person being served is put into a defensive position. This leads to much anxiety and often a more severe response than may be necessary. They hire a "mean" lawyer who will "go for the jugular" and make the case way more expensive in terms of legal fees than is necessary. The person filing (Petitioner) then has to respond in kind and off you go on the "scorched earth" policy which burns through money and is emotionally destructive.
[The person that files the case is the Petitioner – as they are Petitioning the Court. The other person is the Respondent – as they are Responding to the Petition.] See Before You File from our DIY book CalDivorce123, A Client’s Guide to California Divorce for more details.]
To the contrary, in a mediation case the two of you decide together when to file the case and who the Petitioner will be. While this can still be highly charged, it is a mutual decision and so the emotional charge is less and noone is “served” out of the blue. Often the person instigating the divorce will be sensitive to the other person's feelings as to the timing. This creates a sense that they are working together and not against each other. The parties fees a sense of control about their divorce process. In a litigated case, the parties often feel out control. I think we can all agree that it’s much better to feel in control of your divorce process.
One of the most onerous parts of the divorce process is what we call Step Two -- the exchange of the Preliminary Declarations of Disclosure. This is a required process and most people procrastinate completing it -- it can be a great deal of work and inconvenience. In a divorce mediation, we often start with this step so the parties can be thinking about what assets and obligations they have that need to be divided before they even file with the court. An important part of this paperwork is page three of the Income and Expense Declaration which is the expense page. We ask the parties to use this as a worksheet for deciding how the incomes of the parties will be allocated so that each of them can maintain their lifestyles as close to the Marital Standard of Living as possible. This way the parties can be planning the next phase of their lives. By working together in deciding how the resources of the parties are going to be allocated the parties are again in control of their finances instead of having a Judge decide where the monies are going.
This is part one in a series. We will post the next part soon. We hope this has giving you initial insight into the differences of a divorce mediation versus divorce litigation.
If you have any questions, please contact us.
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