By: Bailey & Terranova, P.C. February 1, 2025

Divorce Mediation vs. Litigation: Choosing the Best Path Forward

Divorce cases can be fraught with emotional turmoil, and the adversarial nature of litigation can make resolving the issues even more challenging. Court battles heighten tensions, exacerbate conflict, and prolong the resolution process. Emotions can run high, making it difficult to focus on practical solutions. At the same time, the formal nature of litigation can limit opportunities for open dialogue.

In contrast, mediation offers an environment more conducive to resolving divorce cases. By emphasizing collaboration and mutual understanding, mediation allows both parties to work together toward a resolution that meets their unique needs and priorities.

When facing the emotionally challenging divorce process, deciding between mediation and litigation is a crucial first step. Each option has distinct characteristics that can influence the outcome of your divorce. Understanding the strengths and limitations of each process can help you make an informed choice between mediation and litigation.

How Mediation Works

Mediation is a structured process where a neutral third party helps divorcing spouses work to resolve disputes amicably. Mediation focuses on collaboration and mutual understanding, unlike litigation, which may pit parties against one another.

Michigan Statute 600.1035 outlines the conditions under which contested issues in domestic relations actions, including post-judgment proceedings, may be referred to mediation. A court must first conduct a hearing to determine the appropriateness of mediation unless specific exceptions apply. Mediation is prohibited, in most cases, when there is an active personal protection order or an ongoing child abuse or neglect proceeding, unless the protected party explicitly requests mediation.

The mediation process follows a structured framework designed to encourage collaboration and mutual understanding:

Telling Your Story: Each party begins by sharing their perspective on the issues with a trained mediator who remains neutral. The mediator facilitates open communication and ensures both sides feel heard and understood.
Identifying Issues: The mediator helps the parties identify the key issues at the heart of their dispute, such as child custody, asset division, or spousal support. Focus is placed on finding areas of agreement and understanding where compromises may be necessary.
Exploring Options: The parties brainstorm the potential solutions guided by the mediator’s expertise. The mediator assists in narrowing down these options to those that address the concerns of both parties.
Reaching an Agreement: If an agreement is reached, the mediator drafts a written document outlining the terms. For court-related cases, the mediator can help prepare the necessary paperwork, streamlining the process and reducing the need for additional legal intervention.

Mediation fosters cooperation and empowers both parties to create a tailored agreement that suits the unique factors in the relationship, including property division, child custody, visitation, and other issues that need to be fully resolved.

Comparing Mediation and Litigation

While mediation and litigation aim to resolve disputes, they differ significantly in approach, cost, and impact on the parties involved.

Key Differences

Understanding the distinctions between mediation and litigation is essential for selecting the process that best aligns with your goals and circumstances. Below are the key differences between the two approaches:

Cost: Mediation is generally more affordable than litigation, as it avoids lengthy court proceedings and high attorney fees.
Time Commitment: Mediation typically resolves disputes faster, while litigation can take months or even years to conclude.
Emotional Toll: Mediation encourages collaboration, which can reduce conflict and stress. Litigation often involves adversarial tactics, which may escalate tensions.
Decision-Making: In mediation, the parties maintain control over the outcome, while in litigation, a judge imposes decisions that may not align with either party’s preferences.
Privacy: Mediation is confidential, whereas litigation often involves public court proceedings, which can expose personal matters to public scrutiny.

Factors to Consider When Choosing

Deciding between mediation and litigation requires careful consideration of your unique circumstances and priorities. The following factors can help you determine which approach is best suited for your situation:

Nature of the Relationship: Mediation may be a viable option when the communication between spouses is relatively amicable. High-conflict relationships might require litigation.
Complexity of Issues: Mediation works well for straightforward cases. Complex disputes involving significant assets or business interests might necessitate litigation.
Willingness to Compromise: Both parties must be open to finding a middle ground for mediation to succeed.
Safety Concerns: In cases involving domestic violence or intimidation, divorce litigation could provide a safer environment.
Desire for Control: Mediation allows both parties to retain control over the outcome, while litigation places decision-making in the hands of a judge.

Michigan Community Dispute Resolution Program

Michigan’s Community Dispute Resolution Program (CDRP) is a resource designed to help residents resolve disputes through mediation. This program provides affordable and accessible mediation services, fostering resolution outside the courtroom.

Key Features of CDRP Mediation

While participation in mediation may be court-ordered, reaching an agreement is always voluntary. If no agreement is reached, the parties can pursue other legal remedies.

CDRP mediators undergo extensive training approved by the State Court Administrative Office. Mediators do not provide legal advice or judge the strength of cases; instead, they focus on facilitating solutions that work for all parties.

Who Benefits from CDRP Mediation?

Almost 30,000 Michigan residents benefit from CDRP mediation services each year. This program is suitable for both pre-court disputes and cases already in litigation. By addressing conflicts early, parties can often avoid the time and expense of a full trial.

How Does the CDRP Mediation Process Work?

The CDRP mediation process is straightforward and designed to accommodate the needs of all parties involved. Here’s a step-by-step overview:

Starting the Mediation: Discuss mediation with your attorney, if applicable. Choose between in-person or online mediation sessions, depending on your preferences and availability.
Sharing Perspectives: Each party can present their side of the story without interruption. The mediator helps identify the core issues that must be resolved, ensuring a clear understanding of each party’s priorities.
Exploring Solutions: Parties brainstorm potential resolutions with the mediator’s guidance. The mediator assists in evaluating and narrowing down options to address everyone’s concerns.
Finalizing the Agreement: Once a resolution is reached, the mediator drafts the terms of the agreement in writing. If applicable, the mediator helps prepare court paperwork, eliminating the need for further legal action. In most cases, the agreement ensures that the parties will not need to return to court.

Finding the Right Path Forward

Choosing between mediation and litigation depends on your unique circumstances. Here are some key questions to consider:

Are you and your spouse open to communication and collaboration?
Can you both prioritize your children’s best interests?
Do you wish to keep personal matters private and avoid the public exposure of a courtroom?

Mediation can be an excellent choice for couples seeking a cooperative, cost-effective solution. However, litigation may provide the necessary structure and legal protections in divorce cases with significant conflict or more complex legal issues.

Consulting with Professionals

Before deciding on mediation or litigation, consult with a qualified legal professional. An experienced divorce attorney or mediator can help you understand your options and guide you regarding the best path for your situation.

Our team at Bailey & Terranova, P.C., is here to assist you. Call us at 517-236-7187 to schedule a consultation and take the first step to resolving the critical issues in your divorce.