a. Cost
(1) Mediation– Mediation is much more cost-effective than litigation. In mediation, the couple hires a single mediator jointly. This usually involves the payment of a single fee for both parties at the commencement of mediation which covers all court filing fees and costs as well as mediation costs. With mediation, there are no court hearings where countless hours and/or days are spent with each party paying their respective attorneys at significant hourly rates waiting for a judge to call their case. Effective mediations may be resolved in as little as 1-2 mediation sessions with a mediator. In my more than twenty years of experience as a divorce mediator, the overwhelming majority of my mediation cases were resolved for less than $5,000.00 in total fees and costs combined for both parties.
(2) Litigation- Divorce and Family Law Litigation is, invariably, significantly more expensive than divorce and family law mediation. In litigated cases, one or both parties have to hire their own attorneys and pay retainers/initial deposits which can range from $3,500-$20,000.00 depending on the attorney/law firm. The attorneys then bill on that retainer at an hourly rate and deduct from it at the end of each month. When a retainer is depleted, most standard attorney fee agreements have a clause that requires a client to immediately replenish that retainer. Every second of time spend on the case is accounted for and billed to the client, including attorney travel time to and from court, time an attorney spends waiting at a courthouse for your hearing to be called by the judge. In addition, most attorneys employ support staff- legal assistants, paralegals, associate attorneys, research assistants, etc. who all bill their time spend out to the client at hourly rates as well. In addition to attorney’s fees, litigation clients can expect to pay separately for all court costs, filing fees and costs for subpoenas as well as court reporters fees for court hearings and/or depositions. In my 23 plus years of experience practicing divorce and family law litigation, if a divorce and/or family law case required even one court hearing to resolve an issue in a case, the preparation for the hearing along with the attendance at the hearing (which often gets continued by the court multiple times) completely depletes an initial retainer. Additionally, in my experience handling divorce and family law litigation cases for more than 23 years, each party would separately pay between $5,000 (for simple cases) to upwards of $100,000.00 and beyond (for complex and/or highly contested cases). Studies have shown that the average cost of divorce litigation in California is $17,500.00 without children and $26,300.00 with children.
b. Length of Case
(1) Mediation- Divorce and Family Law cases that are resolved through mediation take significantly less time from start to finish than cases that are litigated. With mediation, the parties have complete control over the timing and duration of their case. They can schedule mediation sessions with their mediator at times that fit their schedule and the pace that they want to see the case run. Once an agreement is reached, the mediator will assist with preparation of the final judgment and supporting pleadings and will ensure that everything gets filed in a timely fashion and properly with the court.
(2) Litigation- Couples that elect to take their Divorce and Family Law case the litigation route, see an average duration of one-two years to reach the conclusion of their case in California. The duration of divorce and family law litigation cases in California continues to increase. The Covid-19 pandemic completely shut down all courts within the State of California for various periods of time in 2020. This created significant backlogs cases in 2020 and 2021 from which many California courts have struggled to recover. Family Law Judges in California, especially in large counties, typically have thousands of active cases assigned to them. When the courts shut down, the court calendars delayed all pending matters for many months. The courts then only partially opened, first with various forms of remote hearings occurring (Zoom, Webex, Microsoft Teams) and then finally with a return to in-person hearings. Court hearings and trials for existing cases were pushed back many months. Once new case filings were permitted, new hearings and trials were pushed back further due to the backlog on the courts’ existing trial and hearing calendars. Currently, if a party believes they need an initial hearing in their case to resolve an issue- e.g., child custody, child support, spousal support, use of property- they will have to file a written motion known as a Request for Orders. In most California counties, these Request for Orders are now being set for hearing between 60-90 days from their filing date. In some large counties, these Request for Orders hearings are being set out 120-180 days from the date of filing. This is just to resolve initial temporary issues in the case. If a final trial is needed, the courts require the parties to follow a specific procedure just to get a trial date scheduled, which can take many months. Most California family law courts require parties to first file a document call an At-Issue Memorandum, which tells the court that the parties are ready for Trial. The courts will schedule a Trial Setting Conference 1-2 months later at which point a Mandatory Settlement Conference will be scheduled. Once a Mandatory Settlement Conference is held, if a resolution is not reached, then the court will schedule a Trial date. Not only does it typically take 3-6 months to get through a Mandatory Settlement Conference with the court, but then once a Trial is scheduled, once again due to the court backlog, the Trial will be scheduled out many months down the line. In the meantime, legal fees mount with the numerous court hearings and parties’ stress level increases with their case going unresolved.
c. Confidentiality vs. Public Disclosure of Information
(1) Mediation- Under California law, divorce and family law mediation and the particulars of what is discussed and shared in mediation is completely confidential. Mediation sessions between the parties and their mediator are private and what is discussed in those sessions cannot be disclosed to any third persons or otherwise be brought up in court if a case doesn’t settle and goes to litigation. Similarly, any documents prepared for mediation or information provided in mediation cannot be disclosed or used in a later court proceeding if the mediation doesn’t result in a settlement. The mediator cannot be called to testify in a future court proceeding about anything discussed or shared in mediation. While the parties’ initial court filings (Petition/Response) as well as their final Judgment and supporting pleadings do get filed with the court, which is public, those are the only documents seen by the public. Everything else remains private and confidential.
(2) Litigation- Under California law, with few exceptions, all documents filed in a divorce and/or family law case are public. Additionally, with few exceptions all court hearings in a divorce and/or family law case in California are public hearings which can be easily accessed by the public, either at the courthouse in person, or online at the county superior court’s website. This is important to know this because many family issues are complex and contain information that most people would prefer to remain private. For example, a couple with children may disagree regarding custody of their children. In order to have the court determine custody, one party will file a motion called a Request for Orders. In support of their Request for Orders, the party is required to file a written declaration signed under penalty of perjury stating why they want custody orders to be made. This declaration commonly includes sensitive information regarding the other parent or their children’s issues. Frequently, these declarations include allegations regarding domestic violence by the other party, child abuse and/or child neglect by the other party, mental health/medical issues, and alcohol abuse. This is all public information for anyone to review, either in person at court or online through a superior court’s website. Once a Request for Orders is served, the responding party has the opportunity to file a Responsive Declaration which will often contain similar allegations about the moving party. When a hearing is held in court- all of the testimony given, documentary evidence submitted (which could include police reports, reports from county social service agencies, mental health/medical reports) becomes a part of the public record. Most couples do not want to have their “dirty laundry” aired out in such a public setting and are surprised to learn how public their case is when they become involved in the courtroom litigation process.
d. Control Over Case Outcome
(1) Mediation- In mediation, the parties have an active role in the settlement and outcome of their case. They can often agree to terms that a court would not otherwise be able to order (as long as the terms don’t violate public policy- e.g.,- child support cannot be waived). In the mediation sessions, the parties are actively discussing their issues with the mediator who helps to facilitate those discussions and guide them to a resolution. This often promotes “outside the box” solutions that best serve a particular family that a court/judge is otherwise unable to order. The parties can control how quickly or how slowly they wish to proceed with their case through mediation. The lines of communication between the parties and the mediator are open and direct.
(2) Litigation- In litigation, the parties have a much more passive role in the outcome of their case. Their roles are more passive because one or both parties to litigation will hire attorneys who are hired to speak on their behalf to the opposing attorneys and/or the judge. The attorneys have a large say in how and when information is shared with either the other attorney, other party, or the court. Sometimes, a client will not know or will disagree with how their attorney shares information or handles certain issues in a case. Additionally, parties to litigation have much less control over the outcome of their case. If the parties are unable to settle issues in their case, they have to present those issues at a contested hearing or trial before a judge. The judge, who in largely-populated counties, has thousands of active cases pending before them and limited amounts of time to hear matters, will frequently be forced to make decisions that are either mandated by state law or made without significant knowledge of a party’s specific interests. In addition, how the testimony and evidence is presented to the judge is frequently beyond a party’s control and can be subject to the skill (or lack thereof) of their attorney. Once an issue is submitted to the court for decision, a party not only has no control over how a judge rules (a judge often is given wide discretion on how to rule on many family law issues) but there exist limited remedies to appeal a decision if a party does not like how a judge rules.