When choosing between litigation vs. mediation, most people aren’t sure where to start. Divorce is never an easy process, but the method you choose to resolve your divorce can significantly impact your experience and outcome. In Texas, the two primary methods for resolving divorce disputes are litigation and mediation.
Each approach has its advantages and disadvantages, but typically, the court, the attorneys, and the parties prefer mediation over trial.
As a general rule, mediation is almost always quicker and more cost-effective than litigation.Our job is to help you choose the right solution to fit your unique situation. There are plenty of cases where mediation simply isn’t a good choice.
In this article, you’ll learn the differences between divorce litigation vs. mediation in Texas, along with the advantages and disadvantages of each method.
What is Litigation in Divorce?
Divorce litigation is the traditional legal process where a divorce case is brought before a court and a judge makes the final decisions on all contested issues. This process begins with one spouse (the petitioner) filing a petition for divorce.
The other spouse (the respondent) is then served with divorce papers and must respond. The case proceeds through various stages, including discovery (the exchange of information), pre-trial hearings, and, if necessary, a trial where both parties present evidence and arguments.
The vast majority of divorce cases in Texas are settled through mediation. Though rare and extremely expensive, Texas does have jury trials in some divorces. The cost of your divorce will be directly proportional to the amount of time your attorney has to spend on it. Jury trials are the most time-consuming.
In most cases, if there is a trial, it will be what’s called a bench trial, which is where you and your spouse present your cases before a judge, with no jury involved. If you and your attorney decide you want to present your case in front of a jury, you have to file a written request and follow a few other rules, which a good attorney can help you navigate.
However, even with litigation, it’s possible to never have a trial. Litigated cases often involvea great deal of back and forth between attorneys and the judge, with a handful of court dates in between.
Regardless of the method you choose, the judge will issue a final, binding divorce decree that resolves issues such as property division, child custody, and support.
Advantages of Litigation vs. Mediation
There are plenty of reasons why your attorney might recommend litigation over mediation. Possibly the most common reason for an attorney to recommend going to trial is that mediation can fail when one or both sides simply refuse to give ground on one or more items, a third party (the judge) must come in and decide things for you.
We regularly handle cases like this and, though more expensive and drawn out, litigation follows established procedural rules, ensuring a systematic approach to resolving issues, which can be refreshing if you and your spouse have been stuck on particular problems that you just can’t resolve alone.
Another big advantage is that a judge is neutral, and is heavily focused on ensuring the final divorce decree is fair and equitable.
During mediation, there is a third party involved (the mediator, who is also an attorney), but he or she doesn’t have the same authority as a judge and is simply there to guide the process and ensure both parties are treated fairly.
If your spouse is unreasonable, stubborn, or suffers from other issues that might make talking things through impossible (like alcoholism or narcissism), having an attorney who will fight for your interests and a judge who can make a final, binding decision (no matter how your spouse feels about it) can be very freeing.
Disadvantages of Divorce Litigation vs. Mediation
As mentioned, litigation can be expensive due to attorney fees, court costs, and more. The process can take many months (or even years) to complete, which prolongs the emotional, social, and financial strains involved. Many people simply do not want to wait that long to move on with their lives, yet litigation will almost certainly push that timeframe backward.
Another major disadvantage of divorce litigation vs. mediation is that litigation can increase conflict between spouses, making an already difficult situation more contentious. Litigation is often referred to as “adversarial,” and it certainly can be.
If you have a difficult spouse, having to deal with an attorney on their side who is making (what feels like) even more unreasonable demands can be incredibly stressful and frustrating.
Understanding Divorce Mediation in Texas
Divorce mediation, provided for by the Texas Family Code § 6.602, is an alternative dispute resolution (ADR) method where a neutral third-party mediator helps the spouses negotiate and reach a voluntary settlement. The mediation process is less formal and more collaborative than litigation (and also much faster, often taking place in a single day).
It involves structured sessions where the mediator facilitates discussions on various issues, helping the spouses find mutually agreeable solutions. Once an agreement is reached, it is written into a mediated settlement agreement (MSA), which is binding. This is then submitted to the court for approval.
Advantages of Picking Mediation in Texas
Aside from being faster and less costly compared to litigation, mediation has another major advantage: the judge presiding over your case can’t make any changes to the MSA except in a few narrow, rare cases (for example, if the court finds you were forced to sign the agreement against your will, which almost never happens).
Mediation also allows for creative and tailored solutions that suit both parties’ needs. Just because you and your spouse agree on something does not mean a judge will too, especially if he or she feels it’s not fair and equitable, but if it’s enshrined in the MSA, it can’t be changed (except in the above-mentioned circumstances).
Finally, mediation is often all it takes to get past issues that appear unfixable to both parties. Even if you’re getting a divorce from someone who is stubborn or being unreasonable, the scrutiny and calm, clear advice that a mediator provides can be sufficient to move your spouse to change his or her mind.
Disadvantages of Mediation in Texas
Like any legal tool, mediation has its disadvantages. The mediator is not a judge and has no real authority. He or she cannot force you or your spouse to do anything.
Additionally, both parties must be willing to negotiate and compromise. If one party is uncooperative or both parties refuse to budge on a particular issue, mediation may fail, forcing you to move to litigation.
Many judges in Texas will require divorcing spouses to go through the mediation process. While he or she can’t force you to sign an MSA you don’t feel comfortable signing, most couples find that they’re able to reach an agreeable resolution during the mediation process.
Finally, mediation is not free, and if it goes over the appointed time, additional fees may be imposed by the mediator and your attorney.
If Divorce is in Your Future, Let Us Help
In Texas, there are several distinct paths to resolving divorce disputes, each with its advantages and disadvantages. Understanding these differences can help you make an informed decision about the best approach for your situation.
Whether through the structured and authoritative process of litigation or the collaborative and flexible nature of mediation, our goal is to guide you through this challenging time and ensure your rights are protected along the way.
If divorce is in your future and you’re struggling with the decision between divorce litigation vs. mediation, we’re here to help. We’ll support you through the entire process and fight hard for you and your children to get the best possible outcome.
Contact us today to set up your initial consultation or call us directly at (214) 646-3253.
