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Mediation vs. litigation: Choices for high-conflict divorce cases

On Behalf of | Jan 23, 2025 | Divorce

People who decide to divorce have additional major decisions to make, including how they will approach the process. There are two main approaches to divorce. Spouses can pursue a contested divorce in which they litigate because they don’t agree on key terms. They can also file uncontested divorces. Often, spouses attend mediation as a way of resolving their disagreements and arranging for an uncontested divorce. There are benefits and drawbacks to both litigation and mediation.

In high-conflict divorces, people often assume that a contested divorce is the only real option available to them. However, mediation might still be a viable alternative even when conflict becomes relatively intense. How can spouses choose effectively between litigation and mediation?

When mediation might work

There are many scenarios in which mediation is a viable option for high-conflict divorces. Spouses don’t have to maintain a positive dynamic to successfully mediate. The mediator facilitating their session helps with communication and compromise.

Caucus or shuttle mediation might be an option in cases where emotions are especially intense. The mediator keeps the spouses in separate spaces and goes back and forth communicating about disputes and potential compromises.

Mediation can theoretically help people work through their disagreements even in intensely contentious divorce scenarios. Mediation is often the best option for those who need specific terms, want to resolve issues quickly or prefer to protect their privacy.

When litigation might be better

There are scenarios in which divorce litigation is the best option available. In scenarios involving manipulative spouses, litigation may be better than mediation. Especially in cases where there is reason to suspect financial misconduct, including hidden assets, settling outside of court may not be the best option.

Litigation makes full financial disclosure mandatory and can create consequences for spouses who intentionally misrepresent their personal holdings. If spouses want to avoid unfair outcomes related to financial misconduct and hidden assets, they may need to forego mediation and litigate.

Litigation may also be necessary in scenarios involving domestic violence. Abusive spouses may not agree to appropriate protections for the children in the family. The only effective way for a concerned parent to protect their children may be to present evidence to a judge.

Discussing the source of a conflict complicating an upcoming divorce with a skilled legal team can help spouses evaluate whether litigation or mediation might be the best solution for them. Every case requires unique solutions and a customized approach to the divorce process.