Divorce is often a challenging and emotional process. You are willing to agree to what is “fair” and want the process to go quickly and smoothly. You just want what is fair so that you can move on. Almost no one wants to go to trial and pay the large legal bills that often come with a full-blown divorce trial. The tricky part is getting both spouses to agree as to what is “fair.” One approach to reach what is “fair” and avoid the larger legal fees associated with a divorce trial is to try mediation. Understanding divorce mediation vs. divorce litigation can help you make an informed decision that best suits your situation.

Mediation vs. Litigation: Which is Right for Your Divorce?

Here’s the thing with mediation. It is a great tool. I use some form of mediation in almost every divorce case where custody and parenting time is contested. I use it less often when the financials are the disputed issue, but sometimes it is a useful tool to resolve financial disputes as well. Overall, I love mediation and use it all the time to help my clients reach a great outcome in their divorce case.

That being said, mediation sometimes gets a bad reputation because people try to use it for what it is not.

Mediation is:

  1. Not Often Cost-Effective in Uncontested Cases. If you and your spouse are willing to compromise and have some general idea how you want to divide things, then mediation is often an unnecessary added expense. A mediator’s job is to help you reach an agreement. If you and your spouse can generally find middle ground with some back and forth and compromise, then why pay a professional whose training is to help you do this. If you generally have an agreement and are looking for someone to draft the proper documents for you, you are looking for an attorney, not a mediator.
  2. Not Trying to Help You Find What Protects the Rights of Either Party. This is a common misunderstanding. In fact, before you start mediation, the mediator is going to have you sign a document where you acknowledge that the mediator is not giving you legal advice. The mediator’s job is just to help you find something that you both agree to. If you reach an agreement, even if it is wildly unfair to you under the law, the mediator has done their job. If you are looking for advice to help you find what is “fair,” you are looking for an attorney, not a mediator.

People often think of mediation versus litigation as a choice between two options. This is a false dichotomy. Just because your divorce action has to go through the Court in some manner doesn’t mean that it has to be contested or expensive. In Nebraska, all divorce cases must be filed through the Court. Thus, technically all divorces are a form of litigation as they require a court action filed. That being said, only relatively few divorce cases actually go to trial. Most cases do settle without the need for any real litigation and many without the need for mediation, especially if there are no children involved. In fact, Nebraska statutes allow the spouses to waive the divorce hearing. This means that if you reach an agreement with your spouse, you never have to step foot in a courtroom or have any type of hearing to finalize your divorce. If you follow the proper procedures and complete the paperwork, you can finalize your divorce case without a single court hearing. Thus, although technically still litigation, you may never be in the courtroom.

That being said, few spouses have a complete agreement at the time the divorce action is filed. Often there is some give and take to reach an agreement and finalize a divorce without a trial. One tool to help find this middle ground for disputed issues is mediation.

Pros and Cons of Mediation

Pros of Mediation:

  1. Space to be Heard: When you go to mediation, you often get to explain your point of view on contested issues. If the other party isn’t otherwise a good listener, this may provide you the space to explain where you are coming from. Once the other party truly hears your reasonings for your solution to the disputed issue, they may be more understanding or have more willingness to work with you to find a solution.
  2. Devil’s Advocate: A good mediator will play often play devil’s advocate to help each party understand the other party’s perspective. A good mediator will often help each party see the drawbacks of taking a hard stance on an issue when there is some middle ground that may be available.
  3. Confidentiality: At trial, a party may generally testify as to what the other party said to them. This is a hearsay exception sometimes called an “admission of the party opponent.” Mediation creates an exception to this. Mediation sessions are private and confidential. Generally, what you say in mediation can’t be repeated at trial. Further, the other party may be more willing to explain their reasonings in mediation when they know their words can’t be repeated against them at trial.
  4. Cost-Effective in Disputed Cases: When used properly, mediation can help you avoid a costly divorce trial. Going to mediation is generally cheaper than going to trial. There is a caveat with this. Reaching a settlement without a mediator is generally more cost-effective than using a mediator. Mediation does come with its own costs as an additional professional is involved. Many cases often settle by reaching an agreement with some back and forth and compromise without the added costs of mediation. Before mediation, see if you can resolve your issues without mediation. If you are going to mediation, first try to pinpoint the contested issues so you are only spending money for the mediator to help you resolve the truly contested issues. Most mediators do bill hourly.
  5. Time-Saving: If you’ve already tried to work things out in settlement discussions and are now stuck, you may be waiting many months until the Court has time to hear your divorce case at trial. Mediation can often be quicker than waiting for your divorce trial date. However, the reality is that some judges now require you to attempt mediation before your case can be assigned a trial date, effectively pushing your trial date out even further if your case does not resolve by settlement or mediation. Thus, you often have some additional outside pressure to work things out in mediation if you don’t want to wait many more months for your divorce trial date to finalize your divorce.

Cons of Mediation:

  1. Added Expense: If both parties are motivated to reach an agreement, you can often reach a compromise and agreement without the added expenses that come with mediation. If you can settle your case with some education as to your rights and some back and forth with the other party, then there isn’t a need for the additional costs that come with using a formal mediator and formal mediation. You don’t need a professional to help you compromise if you are both willing to find the middle ground to find what is “fair.”
  2. Requires Education: Mediation is not a substitute for education. The mediator does not represent either party and cannot advise either party. I’ve seen some pretty strange, sad and unfair results come out of mediation when a person goes in not understanding the mediator’s role. The mediator’s job is NOT to find something that is legally “fair” to both parties. The mediator can’t give legal advice. The mediator’s job is to help you find something that you both agree to, whether it is in your favor or not. The mediator’s job is to help you reach an agreement, even if one party is effectively giving away the farm in what they agree to. If you go into mediation not understanding the law and your rights, you may be paying the mediator to help convince you to agree to something that is very unfair to you. Mediation is a great tool, but you can’t go into mediation uneducated and unprepared if you want a positive result.
  3. Requires Middle Ground: Both parties need to be willing to negotiate and compromise. For most issues, there is some middle ground that the mediator can help you find to resolve a disputed issue. Mediation is a great tool to help you find that middle ground or think of other solutions that may help you resolve an issue. However, the mediator isn’t a magician. If the other party really just won’t agree to anything in the realm of fair, then mediation may be a waste of time and money.
  4. Often Required: In Nebraska, mediation is almost always required when custody and parenting time issues are unresolved. In most cases, this is a good thing as often people can reach an agreement in mediation regarding the custody and parenting time issues or at least a partial agreement on the undisputed issues. Some judges also require an attempt at mediation for the financial issues before your case can be assigned a trial date. Again, this make sense if there is some middle ground. On the other hand, if the opposing party just won’t agree anything in the realm of fair, then mediation can be used as a way to delay getting a trial date and create an additional expense before trial. If the other party has more access to funds than you, the requirement of mediation can be used to manipulate and delay.

Mediation is complete. Now What?

Keep in mind that you still have “litigation” in Nebraska even if you reach an agreement in mediation. To get divorced in Nebraska, you case has to go through the Court system and be signed off by a judge to be final. If you have an agreement as to the terms of your divorce decree, whether you reached such through mediation or through less formal settlement discussions, your divorce action still has to be filed with the Court and submitted to the Judge for approval. Even though it is technically “litigation” because there is a court filing, you never have to have a court hearing if your paperwork is prepared and submitted by an attorney to the Court.

Divorce Mediation vs. Litigation

When used properly, mediation is an effective tool to lower costs and help reach an agreement on cases with an unresolved dispute.

Consulting with a family law attorney in your area can provide further guidance tailored to your unique circumstances, ensuring you make the best choices for your divorce process.

Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha

Child Custody | Child Support | Divorce Lawyers Omaha

If you are looking for an attorney in a child custody, child support case or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.