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Some divorces are filled with animosity, resentment, and loathing. Other divorces are between people who still care very much for each other who simply cannot make their marriage work any longer. Still other divorces fall somewhere in between those two types. Because each divorce is so different, it can be very difficult to know the best option for ending your marriage. Particularly when it comes to the question of litigation vs. mediation, many couples struggle to decide whether they should fight it out in court or try to work together and compromise in mediation. If you are considering divorce and have questions about whether to litigate or mediate your divorce, the experienced divorce attorneys with Colorado Divorce Law Group may be able to help. Schedule a free consultation by calling (720) 593-6442 to discuss your legal options.

What Does Litigate Mean in Divorce?

When most people think of litigation, they think of a criminal trial or cases where someone is suing another person for breach of contract or other lawsuits of that nature. However, litigation is not limited solely to criminal trials or civil suits related to business. A divorce can be litigated as well.

Litigating a divorce means that the divorce is contested. In other words, one spouse wants the divorce and the other does not, or the two spouses are unable to agree on how to divide their assets, share custody, or other terms. Litigation allows the judge to hear from both parties and make a decision based on current law and what is in the best interests of all involved, including any children. Litigation can mean numerous court hearings and can make a divorce take a year or more to resolve.

What Does Mediate Mean in Divorce?

Most people have some idea of what mediation is, and that idea is essentially what mediation means in divorce. The Colorado Judicial Branch defines mediation as a “voluntary, problem-solving process assisted by a neutral third party.” The divorcing couple discusses their preferred divorce outcomes with a third-party mediator who is unbiased and helps them achieve their desired outcomes or find satisfactory compromises.

The mediator does not have the authority to make legal decisions, but they can help the couple resolve issues so they spend less time in court. If both parties are happy with the mediation resolution, the mediator can help the couple create a marital settlement agreement outlining what they have agreed to. The judge will then incorporate that agreement into the final divorce judgment unless the agreement is significantly unfair to one spouse.

Is Mediation Required in Colorado Divorces?

Mediation is usually voluntary. However, some Colorado counties do require mediation. For example, in six of the 10 counties that Denver occupies, mediation requirements are:

• Douglas and Arapahoe counties: Mediation required at least once.
• Denver and Boulder counties: Mediation may be required, but not in every case.
• Jefferson and Adams counties: Mediation not required.

If you are not sure whether mediation is required in the county you live in, Colorado Divorce Law Group may be able to help you.

Why Might a Party Choose Mediation Over Litigation?

Many people see divorce as something that takes place in a courtroom in front of a judge. They think divorce must include arguing and fighting for what they want. However, if a couple is generally able to get along and willing to work together, mediation may be a much better option for their divorce.

A few reasons that someone might choose mediation over litigation include:

• It is less expensive, because there are fewer court dates and there is no legal representation to pay.
• It allows both parties to express their desires and try to come to a mutual agreement if both are willing to consider compromises.
• When there is no imbalance of power, both parties can feel confident that any agreements made are fair.

Why Is Litigation Better Than Mediation?

When considering divorce, some people may wonder whether litigation is better when thinking about litigation vs. mediation. In some cases, litigation may be the better option. With litigation, a judge makes the decisions based on law and what is in the best interests of all involved, including children. The decisions are unbiased, and there is no emotion involved.

Other reasons litigation may be better than mediation in some divorces include:

• The parties can get more information and learn more about the other party if they suspect the other party is trying to hide something.
• A judge’s decision can be appealed if one or both parties disagree with it.
• Communication is limited and controlled between the parties, which is helpful if they do not get along.
• If there is an imbalance of power, such as domestic violence, litigation ensures that the more powerful party cannot use that power to get their way.

What Are the Pros and Cons of Litigation vs. Mediation?

Every divorce is unique. Therefore, it is impossible to say litigation is best or mediation is best. However, if a couple is debating litigation vs. mediation, there are some pros and cons to each that may help them determine which is better for their divorce.

Litigation Pros

While the idea of arguing in court to get what you want may be unpleasant, sometimes litigation is the right option. Litigation pros may include:

• The judge’s decision is based on the facts given and the law.
• One or both spouses can appeal the judge’s decision.
• The spouses’ communication is often limited.
• Arguing in court and getting a final divorce decree gives some couples closure.
• Power is equalized between the two spouses by giving the judge decision-making authority.
• Spouses can hire a lawyer to help them negotiate the divorce.
• Parties get more information from each other due to mandatory disclosures and other discovery demands.

Litigation Cons

In some cases, litigation is not the best option. Some of the cons to litigation may include:

• It costs more, which can be a problem for couples without many assets.
• It takes more time, with many hearings parties are required to attend.
• It causes more stress, with more arguments and little to no decision-making power.
• It is more formal, with dress codes for hearings and rules to follow to avoid contempt of court.

Mediation Pros

Many couples consider mediation as an alternative dispute resolution instead of litigation. There are several benefits of mediation, including:

• It is less expensive, because parties do not need legal representation, a judge, or a courtroom.
• It is faster, because once the parties come to a mutual agreement, mediation is complete.
• It is less stressful, because the parties can negotiate and express emotion.
• Mediation can sometimes be free from the court.
• Both parties have more control over the outcome.
• The mediator is an expert in law, so they can make informed suggestions to the parties.
• Each spouse can hear the other’s side of the dispute directly from them.
• Spouses can walk away with creative, couple-specific solutions.
• Solutions last longer, because both parties agreed to them rather than being ordered by a judge to follow them.
• From Rules of Evidence, Federal Rule of Evidence 408 makes mediation sessions and all that is said in them inadmissible in court.
• Sessions are confidential.
• Parties can gain valuable problem-solving skills to apply in other areas of their lives.

Mediation Cons

While there can be many benefits to mediation, it can also have some drawbacks. Some of the cons of mediation include:

• Parties do not receive as much information from the other party as they would in litigation.
• The decisions made can feel less final due to the lack of having their time in court.
• It can be more expensive than a do-it-yourself divorce if the parties did not plan to hire lawyers.
• Parties will not have a lawyer negotiating for them.

Are You Still Uncertain Which Is the Best Path for Your Divorce?

Deciding between litigation vs. mediation for your divorce is an extremely personal and important decision. If you are not sure which option is best for your divorce, you may want to discuss your circumstances with an experienced Colorado divorce lawyer. Call Colorado Divorce Law Group at (720) 593-6442 to schedule a free consultation to discuss your legal options.