I have heard that litigation can sometimes feel like you have jumped on a runaway train and you cannot get off. Litigation is hard, it is stressful, it takes a great deal of time and sometimes no one is happy about the outcome. So why am I talking about litigation instead of mediation? Because litigation is one of the few options available if you cannot settle or if you choose not to go to mediation. So, let’s start at the beginning. Divorce, in Arizona is litigation. One party either has to sue the other party or the spouses can now co-file all their papers in court at once. Both of these options require spouses to go to court or at least use the court system to get divorced. There is no way around that issue. But there are ways to get divorced that do not involve actually going to court, filing lots of court papers, and having the spouses testify against each other. That other way is mediation. So, you might not know or understand everything about mediation but you should recognize that your other option is litigation and it is not always a good choice.
Mediation in divorce is just a method of solving problems and resolving issues. Litigation in divorce is also just a method of solving problems and resolving issues. In litigation, the judge decides all the disputed issues and in mediation, the spouses have the power to resolve all the disputed issues. A mediator is the person who presides over a mediation and they are a neutral third party who listens to both parties and helps them find some middle ground to make decisions on assets and children. A judge is also a neutral third party who listens to both parties in court under direct and cross examination who then makes decisions that determine how the assets and debts get divided and how the parents take care of the children. The spouses can testify how they want it but at the end of the day, the Judge makes all the decisions after a trial.
Now, if spouses begin their divorce in a typical litigation fashion, they can always attend a mediation after they have filed, even if they are in the middle of “litigation.” In fact, many judges require or recommend that spouses attend mediation before they present their case in court. Oftentimes, a judge may award attorney fees if one party refuses to attempt settlement or mediation because that may be deemed unreasonable. So, before you jump on the runaway train, consider mediation and learn about it. If you find yourself on a runaway train, get off at the next station as soon as possible and learn about mediation. You will be glad you did not ride that runaway train to the end of the line where it might just crash.
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