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Litigation vs. Mediation for a High-Conflict Divorce

By Sarah Jacobs, Esq.

Divorce is never easy, but some divorces are more complex than others. For divorces with high levels of conflict, it’s common to wonder how these high-conflict divorces could ever be resolved.

For many, litigation is the first thing that comes to mind for these contentious relationships. The assumption is that high-conflict couples couldn’t possibly reach an agreement without the need for a judge to make the calls.

However, this isn’t always the case. In some situations, the mediation process can be more effective for resolving a high-conflict divorce. Ultimately, every marriage—and every divorce—is different. Still, if you’re concerned that you’re entering into a contentious divorce, it’s worth learning more about litigation versus mediation before making a decision.

Litigation vs. mediation: What’s the difference?

Both litigation and mediation end in the same result: a divorce, but each approach takes different steps to get there. 

When couples divorce using litigation, they go to court. Each step of the process goes through the courts. While some litigated divorces can be settled without going to court or involving a judge, other litigated cases go to trial, which can be stressful and difficult. 

The litigation process—especially if a case goes to trial—can be time-consuming, depending on the court system’s caseload. Litigation can also be costly, with expenses in the thousands depending on how many issues need to be resolved.

On the other hand, mediation can be less confrontational and less adversarial than litigation. A form of alternative dispute resolution, mediation involves a trained, neutral third-party mediator guiding the parties through discussing the issues of their divorce settlement and coming to an agreement on each component of it. 

During the mediation process, while parties don’t need to have family law attorneys, they certainly can better advocate for their positions and understand the nuances in the law while they negotiate. In fact, it’s common for each party to work with their own lawyer, in addition to the mediator. Compared with a litigated divorce, the mediation process generally tends to be faster and less expensive. 

When to consider mediation for a high-conflict divorce in New Jersey

While cost and time are essential concerns for anyone considering a divorce, for couples facing a high-conflict divorce, there are a few reasons why mediation can be a preferable option.

Mediation encourages you to focus on the bigger picture

One of the reasons why mediation can be so effective in high-conflict cases is that it prompts the parties to consider the bigger picture. With mediation, neither party can move forward unless agreements are reached. The parties tend to focus on resolving more straightforward issues to tackle the larger concerns more effectively.

What’s more, mediation allows for more privacy during the divorce process. Because litigation goes through the courts, the divorce becomes part of the public record—and long-term, having one’s divorce part of the public record may be undesirable for both parties. 

Mediation is individualized

The mediation process means that you can explore what your specific concerns are about an issue, such as spousal support or child custody. As a result, there’s more flexibility to reach a customized agreement that addresses both parties’ specific concerns. 

It can be beneficial to work with a mediator or family law attorney who has the experience and creativity to help you and the other party find solutions that will work for you both. Often, parties can agree upon unusual outcomes because it works for their family, and those outcomes are often things a judge wouldn’t—or couldn’t—award.

In effect, mediation means you may be heard to a greater level than in a courtroom. That doesn’t mean it’s without compromise, however. The critical difference is whether you have the power to agree to the compromise (mediation) or whether someone else may ultimately choose the outcomes for you and the other party (litigation).

Mediation may be easier on children

We don’t exist in a vacuum. If you and your co-parent are experiencing higher levels of stress and conflict, your children will probably feel it too. Even in the best of circumstances, parents can’t simply wave a magic wand without a divorce and eliminate the tension created for everyone in the family from stressful events. Add a divorce in, and it becomes exponentially more challenging for parents to shield their children.

Ultimately, taking care of your mental health is essential—and not just for you. Mediation provides an option for parents to explore practical solutions for everyone without relying on a judge to “get it right.”

Mediation gives you more control

During a litigated divorce, the parties involved have less control over the process. This can be helpful, or it can be problematic, depending on the situation.

In a litigated divorce, a judge’s ruling is final. That can be tricky for some people to adjust to, and there are times when, in retrospect, the parties wish they had had the opportunity to come to an agreement on their own. This is particularly true when the outcome doesn’t make either party feel like a winner and when the decision creates more questions than solves answers.

Additionally, in divorce cases involving many assets, it may be impossible for the court to itemize its rulings or be highly detailed about how financial accounts should be divided (like who gets what mutual fund in a retirement account). Therefore, there’s less opportunity for individualized solutions.

Litigation can increase stress

It’s worth mentioning that litigation can increase stress for the parties involved. It’s inherently a more adversarial process than mediation, which can lead to feeling like each step is a battle in a long-running war. This mindset tends not to make people feel more relaxed and flexible—instead, it can deepen the conflict.

When to consider litigation for a high-conflict divorce in New Jersey

Mediation can be a valuable approach for high conflict divorces, but there’s no one-size-fits-all approach for any divorce in New Jersey.  

For relationships where there has been a history of domestic violence, breaches of trust, or repetitive refusal to engage in the process at all, alternative dispute resolution processes may not work. In these cases, litigation provides a few advantages: 

  • Court discipline: If one party is uncooperative with the divorce process, judges have the power to address this and enter sanctions or award fees. 
  • Subpoena power: If one party is hiding assets, the litigation process can compel disclosure and require critical documents, such as financial statements, to be provided. 

You can always change your mind 

When deciding whether to litigate or mediate, remember that you can always change your mind. You can start with litigation and then switch to mediation, and the reverse is also an option. 

It’s also important to remember that in New Jersey, the court system attempts to facilitate resolution before trial and builds multiple options for mediation and settlement-oriented discussion into the litigation process, so choosing to litigate doesn’t mean you’ve given up on reaching out agreements with the other side.

Whichever path you choose—or switch to—having a support network in place is something we always recommend during a divorce. Even for divorcing parties who are relatively conflict-free, it’s a stressful experience. The first step is always to make sure you have strong supporters in your corner. 

Work with an experienced family law attorney

Whether you proceed with litigation or mediation—or switch from one to the other—choosing the right family law attorney is integral.

The divorce attorneys at Jacobs Berger have extensive experience representing parties in litigated divorces. We also practice extensively in the mediation field as individual legal counsel and qualified mediators.

We’ve seen divorces of all kinds and have a wealth of knowledge to draw on when it comes to finding solutions. At the same time, we know from these experiences that the issues and circumstances of each divorce are unique. We also take pride in our creativity in finding a path forward that is workable for both parties.

If you’re considering divorce or are in the process of getting divorced, contact us to schedule a strategic planning session. Our skilled family law attorneys can answer your questions and guide you through the process.

Contact Our Morristown Attorneys Today

At Jacobs Berger, our attorneys are experienced in protecting our clients across Madison, Randolph, Tewksbury, Morristown, and the greater Morris County area in all family law-related issues.

To schedule a strategic planning session with one of our experienced team members regarding your particular case, please contact us online or through our Morristown, NJ office at (973) 354-4506.