• Nancy Burnett

Should You Settle or Litigate

Ending a marriage can be emotionally draining and because of that, it is estimated that 95% of divorcing couples are not willing or would not prefer to take their divorce cases to trial. Many couples are opting to negotiate their divorce settlements with the help of family law attorneys or mediators whose work is to assist them in forming and finalizing an agreement.


The attorneys or mediators then draw up an agreement that is signed by both partners. This divorce agreement becomes a binding contract that both spouses are expected to adhere to without fail. If as a couple you violate the terms of the contract or fail to agree outside the court, then that would definitely end up being a court case, which is normally very unpredictable, contentious and very expensive to you as a couple.


So, having put that into consideration, you will agree with me that it would be better if as a couple you reached an agreement out of court. Issues such as parenting arrangements, child support and custody, as well as asset division, can all be negotiated out of court.


The Psychological Value of Reaching an Agreement Vs Going To Trial

In contrast to litigation, mediation is a process that entails working with a neutral third party whose role is normally to empower, educate, and facilitate the couple into negotiating their differences to a settled agreement. Below are some of the benefits of settling to litigation:


· When a marriage discontinues, families that have children tend to continue after marital interference. Therefore, when couples avoid the public acrimony of litigation or an adversarial legal proceeding through mutually agreed solutions, family relationships are less destructed, and particularly the parent to child attachment.


· Settling reduces emotional costs because the emotional needs of both parties are well taken care of because mediators for instance, often maintain neutrality during the mediation process. Mediation creates an environment where there is equality in bargaining power and thus no party is taken advantage of.


· Allowing the concerned parties to freely express their emotions in an environment that recognizes those feelings without necessarily disrupting substantive discussions, gives them a therapeutic experience that wouldn’t be accorded to them during the trial process.


· Due to the fact that mediation often takes place behind closed doors, couples are likely to feel more psychologically at ease when disclosing intimate details of their marriage or personal lives because of the confidentiality accorded to them unlike in the court rooms where sharing information can be quite uncomfortable. The confidential proceedings tend to give a couple a sense of security


· It reduces the financial costs that would otherwise lead to stress


· Unlike litigation, settlement outside the court takes less time and gives a couple more control over their divorce issues.


· The positive environment created during the mediation process tends to significantly reduce anxiety and this enables both parties to focus more on the decision–making process.


· When a couple shares information that arises from a common sense of their respective rights and obligations, there’s uniformity in communication, which goes a long way in increasing the likelihood of future agreements, as well as decreasing disagreements.


· Mediation promotes effective communication between spouses owing to their willingness to openly disclose their feelings to each other, which builds trust.


Parting Shot

As a couple, it is important to note that mediators do not normally give legal advice nor offer therapy services. Therefore, as concerned parties, you have every right to obtain legal advice from a lawyer or consult with a psychologist before, during and after the mediation process.



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