The breakup of a marriage is often chaotic and emotional. Many California spouses try to minimize the trauma of a divorce by using alternative dispute resolution methods, such as mediation or collaboration. In some states, courts require a couple to try mediation before heading to court, especially where children are concerned. However, the experience of some family law professionals shows that sometimes mediation is not a good idea.
When is it appropriate for a divorcing couple to skip mediation and head right to litigation? Of course, this is a personal question, and the circumstances of each breakup are unique. In general, however, if one spouse refuses to set aside differences and work toward a fair agreement, efforts at mediation are likely to fail. This may include spouses who have lists of demands that they will not compromise or those who simply want to inflict as much suffering as possible on their former partners.
If one spouse suspects the other is hiding assets, mediation may not be the best method of divorce. Litigation includes a discovery phase that can reveal any assets unfairly squirreled away. Additionally, it is seldom fair to mediate the divorce of a marriage that has an unfair balance of power or involves elements of abuse. One spouse will likely have a decided disadvantage and may benefit from the protections of a trial.
These are only a few of the reasons why some would choose litigation over mediation for a divorce. In many cases, going to court can increase the chances of a fair outcome. Those in California who opt for a trial will want an attorney who is skilled in all aspects of divorce law, from the discovery phase through the enforcement of court orders.