When getting divorced, it is important to be aware of the difference between litigation and mediation and to understand the different processes involved, in order to make an informed decision when deciding how to proceed.
Litigation means to engage in legal proceedings in a court of law. Generally, litigation is necessary when a dispute involves a legal question which needs to be determined by a Judge or Magistrate, or a remedy is required that only a court can provide. Parties involved in litigation usually appoint an attorney to handle their matter and to advise them on procedure and strategy.
When parties decide to get divorced, the issues that most commonly need to be dealt with fall into four categories, namely:-
· the division of assets;
· spousal and child maintenance;
· parental responsibilities and rights; and
· care and contact arrangements in respect of minor children.
When parties cannot reach agreement on these issues, they resort to litigation.
The formal divorce court process commences when the person instituting the divorce proceedings (the Plaintiff) issues Summons against the other party (the Defendant). The Summons sets out what the Plaintiff seeks from the divorce and, once issued, must be served personally on the Defendant by the sheriff. The Defendant must deliver a Notice of Intention to Defend and thereafter a Plea and Counterclaim, which is their answer to the Summons and what they seek from the divorce. The Plaintiff then has an opportunity to answer the Defendant’s Counterclaim in a Plea to the Defendant’s Counterclaim. The Court Rules set out the time periods within which these pleadings must be exchanged.
Once this process is completed, a trial date can be applied for. As there is a backlog in our courts, it is likely that a trial date will be obtained within 12 to 18 months from when the date is applied for.
The parties then enter into the discovery stage, whereby each party calls upon the other to disclose all documents in their possession which are relevant to the matter, including documents pertaining to their respective financial situations, assets and the like.
In opposed divorce matters, there are often issues which arise between the parties during the divorce process which are required to be dealt with, and some of these issues must be dealt with by way of an Application to court, which can delay the hearing of the trial. For example, a party who requires interim maintenance, a contribution towards their legal costs or an interim decision regarding arrangements in respect of the minor children, pending the outcome of the formal divorce proceedings, can apply to court for an Interim Order in this regard. A party may also apply to court for an Order compelling the other party to discover certain documents, where the other party has failed to make a full disclosure of their documents in the discovery process. Where there are allegations of abuse or any other form of domestic violence, the parties may become involved in domestic violence proceedings.
In acrimonious divorces, parties may become embroiled in litigation for two to three years, causing them to incur substantial legal costs, even before they reach trial stage. It is very expensive to run a trial, as there is a lot of preparation involved and, generally, an Advocate is briefed to argue the trial, whose fees must also be paid over and above the attorneys’ fees.
Faced with the ever escalating costs of running a trial and leaving the decision in the hands of a Judge who may not find in their favour, parties often end up settling the matter before the trial, despite having already incurred significant costs.
When parties have reached agreement on the terms of their divorce, they are still required to finalise the divorce process by appearing in court and obtaining a Decree of Divorce, however, this is on an unopposed basis and is a much shorter and cheaper process that on an unopposed basis. Once the parties have reached agreement and the terms of their agreement have been recorded in a written Settlement Agreement and Parenting Plan (where applicable), the signed Settlement Agreement is attached to the Summons, which is served personally on the Defendant by the sheriff. If there are minor children involved, the Settlement Agreement and/or Parenting Plan must be endorsed by the Family Advocate, which means that the Family Advocate is satisfied that the arrangements regarding the children are in the children’s best interests. A date for the hearing of the divorce can then be obtained on the unopposed divorce court roll, which is likely to be obtained within three to four weeks from when the date is applied for.
The Plaintiff must attend at court on the day of the hearing of the divorce with an Advocate, who will ask the Plaintiff a few questions in front of the Judge or Magistrate. If everything is in order, a Decree of Divorce will be granted, and the Settlement Agreement and Parenting Plan (if applicable) will be made an Order of court.
Mediation is the process whereby divorcing parties meet voluntarily with a neutral, skilled mediation practitioner, in an attempt to reach agreement on the issues in dispute. Mediation is confidential and any information shared in mediation cannot be used for or against either party, should the parties ultimately be unable to settle and the matter goes to court. The mediation practitioner cannot force the parties to make decisions or to agree to anything, and any decisions reached in mediation are not binding on the parties until incorporated into a written and signed agreement.
Typically, parties attend two to three mediation sessions. If agreement is reached, the mediation practitioner will prepare a written document outlining the terms of agreement, which the parties can have reviewed by their respective attorneys, should they wish to do so. A Settlement Agreement and Parenting Plan (if applicable) will be prepared, and an attorney will assist the parties with finalisation of the formal divorce process on an unopposed basis, as outlined above.
The Benefits of Mediation
One of the many benefits of mediation is that the parties remain in control of the outcome of their case, whereas if the decision is left to a Judge or Magistrate, it is likely that a decision will be made that doesn’t suit the parties. Similarly, the parties are able to make decisions which are unique to their situation, as opposed to having standard orders imposed on them by a Judge or Magistrate. This, accordingly, offers parties far more certainty.
Mediation is suitable for parties who are willing to try to work together and who wish to avoid the emotional and financial implications of protracted litigation. When there are children involved, mediation helps parties to maintain working relationships going forward for the sake of their children and encourages parties to take a long-term view, so that the focus is on what is best for their children’s futures.
The mediation process is much shorter than the opposed divorce process and, should the parties reach agreement on the terms of their divorce in mediation, their divorce may be finalised within two to three months.
Furthermore, if the parties are not able to reach agreement on all of the terms of their divorce in mediation, they may find some common ground which narrows the issues in dispute in litigation.
Litigation is by its nature adversarial and forces parties to take a position, whereas mediation encourages dialogue and seeing one’s position from a different perspective. There is undoubtedly a time and a place for litigation and in certain circumstances it cannot be avoided, however, often parties enter into litigation because they are hurt and angry and, rather than trying to understand what their clients are going through, attorneys fuel these emotions. Parties only realise this when they have spent exorbitant amounts on legal fees and their children have suffered the consequences of a protracted divorce.
It is highly recommended to start the divorce process with mediation and to only proceed by way of litigation if mediation is unsuccessful. There is nothing to lose by attending mediation but a lot that can be lost in acrimonious litigation.