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When is Divorce Litigation a Better Choice Than Divorce Mediation?

As both a divorce attorney and mediator, I believe that divorce mediation is best-suited for the majority of the divorce cases that come across my desk. With that said, there are instances when divorce litigation is the more useful tool in the resolution of a divorce. In my previous post on the subject of divorce mediation, I described times when divorce mediation was the better option– here are a few examples when it is not.

If you believe your spouse is being dishonest or disingenuous

On some occasions, your spouse may attempt to hide assets or fail to be honest in his or her negotiations. If you think that your spouse is not transparent in a mediation meeting, you should consult with an attorney to explore other options such as traditional litigation. In litigation, there are certain safeguards that are meant to discourage such behavior, such as the court-ordered full disclosure of property, debts, income and expenses. If your spouse were to offer incomplete information or conceal information in these disclosures, he or she could be subject to sanctions or penalties and could potentially be indicted for perjury. If your spouse’s transparency is in question, mediation is not an option for you.

If you feel pressured or bullied by your spouse

In divorce mediation, it is the job of a mediator to ensure that the needs and concerns of each spouse are heard. I pride myself on neutrality and equality, and I ensure in each session that neither side is bullied by the other. However, your mediator cannot be with you outside of a mediation session. If your spouse attempts to intimidate, bully or pressure you, the best response is to seek a lawyer to represent your interests.

If you think your spouse is fixated on a mission to defeat you, or to marginalize your interests altogether

Mediation is a collaborative process for problem solving. The goal of any mediation is a settlement. The process does not concentrate on assigning guilt or blame. It is not about one spouse “winning,” or defeating the other. If you believe your spouse seeks to trivialize your claims and concerns, then mediation is destined to fail in your case. By its nature, mediation is about two opposing parties coming together to forge an agreeable and long-lasting settlement.

About the Author

Maureen Dougherty, Esq.

Maureen Dougherty, Founder

Maureen is the founder of Dougherty Mediation Group and a partner at Comerford & Dougherty, LLP in Garden City, NY. In 2009, she began incorporating mediation and the collaborative process in her law practice. She went on to establish Dougherty Mediation Group in 2011 as a constructive alternative to litigation. She passionately believes that mediation is a far more equitable and productive process for dispute resolution.

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