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MEDIATION VS. GOING TO COURT - A COMPARISON
To Mediate or to Litigate? - That is the Question!
| LITIGATION | MEDIATION | |
| Step 1 | Consult with an attorney. In this meeting you will find out how much the attorney charges and how strong they believe your case is. | First Mediation Session: Initial session with Mediator. In this meeting, for the first 15-30 minutes, the Mediator explains your role and theirs in the process, and answers your questions about mediation. If you choose to proceed, mediation then begins. The two of you, with the help of the mediator, outline the general issues involved in your case, and discuss immediate parenting and financial matters. Typically, the couple decides how they want to share time and finances, for the immediate future, while the mediation process is proceeding. This allows them to feel more comfortable about the immediate future, eliminating some of the stress inherent in separation, so they can focus on moving forward. The mediator will help the couple begin reaching tentative agreements on the issues they have outlined, such as: a weekly parenting plan, a holiday plan, transportation issues, and how to deal with the possibility of one or the other parent moving away. The mediator will encourage you to discuss what you believe would be best for your children. To the extent you wish, the mediator will explain applicable statutes to you, guidelines the courts use, etc. The mediator will ensure that both parties have the chance to provide their input. discuss what you believe is best for your children, help you brainstorm options where there are conflicts, and create a tentative parenting plan. A rough draft summary of the session will be provided to each spouse, for them to review and consider after the session. The parties and the mediator discuss information the couple needs to gather to address a segment of the remaining issues at the next session. |
| Elapsed time: 90 Minutes | Elapsed time: 2 hours 15 min. | |
| Step 2 | Prepare initial documents, or an answer. Your attorney will prepare the documents needed to file with the court and will arrange to have a constable serve your spouse those papers.The process itself takes approximately 3-5 hours, depending on the issues involved in your case. However, your case is being handled along with the attorney's other cases. |
Second Mediation Session: Continue Mediation sessions. The mediator will help the couple go over any issues from the rough draft summary of the last session which the couple would like to discuss further. Discussion regarding Finances: In this session, the couple will focus on the financial aspects of the divorce, including: Child Related Expenses: Financial issues in a divorce include child support, medical insurance, child care expenses, extra-curricular costs. Debts & Assets: This includes matters such as the home, mortgages, businesses, retirements, bank accounts, personal property, vehicles, etc. Alimony: The discussion regarding alimony will involve what each party should consider in determining alimony, if it is an issue. Most cases are resolved in two sessions. The mediator will send home a rough draft of the parties' agreement, to review, discuss with counsel if desired, etc. If issues remain, the parties and the mediator will discuss information the couple needs to gather to address the remaining issues at the next session. |
| Time: 7-14 days | Time: 7 days out, second 2 hour session. |
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| Step 3 | Service of papers. The constable will serve your spouse. If your spouse is avoiding the service of papers, this process could take longer. | If the case was resolved at the last session, the parties will take whatever time they need to review the agreement, usually a few days, then come in for a free meeting with a notary to sign the agreement. Some cases require additional sessions. If so, the parties will meet with the mediator to review and discuss issues from the last session which need to be discussed further. A rough draft of the agreement will be provided to each spouse. The parties will take the agreement home to consider, discuss with counsel if desired, etc. |
| 2 weeks | Time: Week Two, 2 hour session. | |
| Step 4 |
Waiting for the other side to file an answer. No hearings can be held until the other side has had the opportunity to answer the initial petition. |
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| Time: 20 days | Time: Week Three. 2 hour session. | |
| Step 5 |
Discovery Phase. Gathering evidence and gathering testimony. In this phase, the attorneys meet with you, send out discovery requests, and obtain evidence needed for your case. Both sides have the opportunity to ask almost any question they wish to ask about the issues involved in the case. You are each required to be forthcoming in these proceedings. However if one party does not cooperate, additional time is often required to file motions forcing them to comply. Temporary Hearings. During this phase, the attorney may also schedule a temporary hearing to address how issues should be addressed between you and the other side while the case is pending. This requires filing a motion, affidavit, etc., scheduling a hearing date, waiting for the other side to respond, filing a reply to that response, attending the hearing, and drafting the order from the hearing. Issues might include who has temporary custody of the children, what temporary child support and alimony should be paid, etc. |
Continue Mediation sessions as needed. Review and discuss any issues from the last sessions which need to be addressed further. Sign Mediation Memorandum. In this session you will sign the agreement in front of a notary. You will then be given options for having the final divorce documents, implementing your agreement, drafted. |
| Time: 3-6 months | Time: Week Four. 2 hour session. | |
| Step 6 |
Professional analyis of financial issues. Either attorney may want to obtain an expert opinion regarding the financial issues involved in your case, including pension plans, inheritances, and in the event that a business is owned by the parties, possibly an independant valuation of the business. | |
| Time: 1-3 months | ||
| Step 7 |
Custody Evaluation. If there is significant conflict regarding who the children should live with or what the parent-time schedule should be, either of the parties may request a professional custody evaluation. Normally both parties split this cost. The evaluator takes several weeks talking to the parties, neighbors, teachers, and the children, then offers their professional opinion. Initially, the evaluator discusses their opinion at a conference involving the parties and counsel, then submits a formal report, then testifies at trial. The judge typically uses this information in making a decision about what will happen to the children. The time involved in this process varies dramatically depending on the evaluator's waiting list, their process, and the parties decisions through the process. |
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| Time: 3-8 months | ||
| Step 8 |
Mediation. In Utah, mediation is a mandatory part of the divorce process. It can be done at any time through the case, but is typically done (in the litigation context) after discovery. In the litigation process, this process is typically handled in one half-day, or full-day session. The parties' respective attorneys typically attend with them. |
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| Time: 1 day | ||
| Step 9 |
Actual trial. The trial will last about 2 days and depending on how much preparation is needed can be the most expensive portion of the divorce. This is where the Judge will make a final decision on how the children will be handled and the separation of the debts and assets. | |
| Time: 3-5 months | ||
| Step 10 | Hearing to enforce Judge's decision. In the event that you or your spouse don’t obey the judge's decision on any of the issues, then you are forced to go back to court to have the judge enforce the ruling. While this does not happen in every case, it is common and sometimes necessary if one spouse is depending on the other for financial support. | |
| Time: 4 months | ||
| Total Time Spent: 13 months (avg. litigated divorce without fighting over children) - 3 years (avg. litigated divorce involving custody battle) |
Total Time Spent: 4-7 weeks |