Family Court Trends in 2023
Now, nearly two years removed from the pandemic shutdown, the aftershock remains a factor in our daily lives, touching and transforming nearly everything. While the government quarantine was in place, the courts were mostly shut down, which stalled out many cases that required a jury. For divorcing couples, that meant that litigation in front of juries would be stalled for over a year or longer.
While most divorce cases do not go before juries, some do, especially highly-contested cases with embittered former spouses. Alternatives to litigated divorces do exist, however, and in most cases, judges would prefer that divorcing spouses utilize mediation to settle their issues. This is because there is a backlog of cases still moving through the dockets because of COVID, and during COVID, a lot of these battling spouses figured out a way to resolve their problems in mediation without waiting two years for the courts to hear their case.
In this article, we will discuss the role of mediation in divorce and why divorces are trending that way as opposed to more litigation.
Post-COVID Mediation is Proving Useful for Divorce
Litigation occurs before a judge. While there are plenty of discussions that happen elsewhere, everything you or your spouse says passes before a judge for review. The judge renders a decision, the decision is final. A mediator, on the other hand, is a neutral third party who helps the divorcing parties figure out their own terms. Mediators may discuss the matter with the parties separately, discuss the strengths and weaknesses of their legal arguments, and all of this can be accomplished over teleconference instead of a formal hearing.
A more formal hearing would require all the parties to set a time to be there together. Mediation via teleconference is ideal for the post-COVID world. Hence, it is being used predominantly for divorce cases which are often resolved through mediation.
The Courts Prefer Mediation
To be fair, not all divorces should be mediated. However, spouses who demanded a jury trial only to find out it would be two years before their case was heard and then successfully resolved the matter in mediation are raising eyebrows. In some states, there would be a requirement to attempt mediation before litigating the divorce. This is an attempt to reduce the burden of cases on the court system, so litigants have been encouraged to attempt mediation since well before COVID.
The Perils of a Litigated Divorce
Litigation is rarely the best option available and is almost always the means of last resort. There are several reasons for this, but the most obvious one is that the longer your divorce takes to complete, the more expensive it will be. The downsides to a litigated are:
- Increased cost - Litigated divorces take longer, require investigators, and are simply more expensive. Mediation is much cheaper and faster, and the courts prefer it.
- Less privacy - Do you want the world to know what happened to your marital estate? Well, if the case is litigated, your assets will have to pass through probate. That makes them a matter of public record. Hence, high-asset couples often choose to avoid litigation when possible.
- Less control - In a litigated divorce, the decision comes down to the judge who interprets the law. Once the power is in the judge's hands, the litigants lose any power over the decision-making process. Mediation is more flexible and offers parties the ability to negotiate. If one party is unhappy with the results, the decision is not binding. Litigation is binding.
Is Mediation Binding?
Mediation is not binding. It is an attempt to reach an agreement in lieu of a jury trial by analyzing the arguments and coming up with a likely resolution. It is important to understand the difference between mediation and arbitration. Mediators can elect to hire a private judge or arbitrator, and the divorcees can sign paperwork to make the arbitrator's decision binding.
What is Divorce Arbitration?
Divorce arbitration may be the solution for divorcing couples who cannot find common ground to mediate their case. It is important to understand that a mediator is not a judge and does not serve the same function as a judge. However, an arbitrator does, albeit, as a private citizen. The arbitrator is authorized to decide the matter in a legally-binding way. The basis for this legality can be found in contract law.
How Does Divorce Mediation and Arbitration Work in Practice?
You and your former spouse may have a good idea of how you want to approach custody, but what about the marital estate? You are attached to some assets, and your spouse is attached to those assets too. You cannot agree on what to do!
While you would not need an arbitrator to come in and decide custody, the arbitrator is required to make a call on which assets go to which estate. So, the actual “judging” is reduced to only what is necessary, and the spouses retain control of any decision that they can reach together.
For couples that have reached an impasse on a specific issue, one contentious matter will not derail the entire process.
When Do I Need to Litigate a Divorce?
There will be times when litigation is preferable to any other option. Your attorney can advise you on what is best for your case. In some cases, divorces can become highly bitter, and one spouse tries to deceive the other spouse and the courts and derail the negotiation process. In other cases, there may be allegations of abuse, child abuse, or substance abuse.
In most cases, a spouse should trust their instincts. If you know that your former spouse will not cooperate with the mediation process, then you are probably right.
Call a Sacramento, CA Divorce Lawyer Today
Wagner Family Law represents Sacramento residents who are considering divorce. Call today to schedule an appointment, and discuss your options immediately.