Should I Mediate or Litigate my Family Law Case? Top 8 questions to ask

Many spouses caught in a family law battle feel that going to court is the only way out. Trust levels are at an all time low and couples assume there is no way to agree other than having a judge decide.

The reality is that over 95% of family law cases end up settling. And your case is likely one of those.

Let’s ask a few questions to see what your path should be:

1) How Quickly Do You Want to Resolve Your Family Law Case? 

It can take years between the initiation of court proceedings and a trial being heard in British Columbia. A family law mediation can be completed within weeks of booking.  Courts require numerous steps to be taken prior to your case being heard, whereas mediation is much more relaxed, and the spouses are able to set their own rules. 

Mediation offers a quicker path to closure, avoiding prolonged conflict and the desire for revenge.  Getting stuck in the conflict cycle will have you thinking about and reliving the events that hurt you. The goal of mediation is to wrap up this part of your life, to resolve and settle differences, so that everyone can move on and forward to a happier future without the conflict of the past.

You can even compel your spouse to attend mediation even if they do not want to.

2) Court Costs vs. Mediation Costs

Family law litigation can cost anywhere between $20,000 to $500,000 +. Mediation generally costs between $5000 to $25,000. This is a huge benefit to mediation and one of the very good reasons you should mediate your family law dispute prior to trying litigation. 

3) Family Law Mediators vs. Judges

Most accredited and experienced family law mediators are senior family lawyers or retired judges. Judges were also senior lawyers prior to being appointed. If you pick the right mediators, they can be just as trained, if not more trained than some judges. 

Click here for a list of the best family law mediators in BC.

Family Violence Training

In British Columbia, Family Law Mediators receive special training so that they can do a review and assessment of the suitability for mediation.  The Mediator will meet with each of you separately prior to the mediation to do this violence screening, and to learn about any safety concern.  They are trained to understand issues of control and intimidation and have skills to stop an abuser from controlling the mediation session. 

Most often if there has been family violence, or the dynamics are such that the parties cannot be in the same space, you will have your own room, and the mediation will be conducted by the Mediator “shuffling” between those rooms, even if the rooms are “virtual” in the case of mediations conducted online.  If the abuser is not behaving properly, the Mediator will stop the process if needed.

If there has been physical or emotional abuse in your relationship you need to let your mediator know, as an important role the mediator plays is to create a safe place for you.  Your mediator must do everything possible to always ensure your physical and emotional safety throughout the mediation process.

When you litigate, the judge doesn’t do any of the above. Instead there are sheriffs are present to ensure your physical safety and the process can feel impersonal and intimidating.

The Mediator is neutral and will not take sides with you against your ex-partner, or with your ex-partner against you.  Instead, the Mediator will work with you to increase your understanding of each other and your conflict, and help you find ways that the future structure can work for both of you.

4) Who Should Have Control over Your Children, Finances and Results?

When you litigate you give all the control to a judge who is a stranger and has very little information about you and your family’s history. In some cases cultural issues are at play which a judge may not be familiar with, and a mediator with the same cultural background can better assist you.

Another reason people choose mediation is that it allows you to have control over the process:

• Because it is a voluntary process, you can evaluate if you are emotionally prepared to participate. You can reflect on any external pressures to participate, and ensure your decision is not influenced by others.
• You can have a support person with you during mediation so long as they agree to be bound by the rules of confidentiality when participating.
• Because you won’t agree until you are ready to – when the agreement meets your needs.
• Because you schedule appointments on your timeframe and can take the time you need between meetings to gather information, consider proposals, and run things by your advisors – be it your parent, sibling, friend, counsellor.

5) Do You Want to Keep it Private or Public?

Mediation is private and confidential, so you can frankly discuss cash or other unreported sources of income, addiction, infidelity, and any other sensitive issues without fear of it being made public.

Courts are almost always public and your court records can remain public for decades. Sometimes court decisions are published on the internet with your name, and for everyone to see the intricate details of your case and family.

6) Options and Outcomes 

When you go to court the judge only has limited options when making a decision. This is because judges are bound by the law and rules, and cannot deviate.

Mediation allows for people to brainstorm and come up with opportunities and options that are not always allowed by the courts. These include taking the difference in financial positions and putting that amount in trust for your kids, coming up with parenting plans that are unusual but work in your situation, placing assets in trust, delaying taxes, etc.

7) Bad Taste vs. Good Taste

Despite the nature of a relationship, parties will always have a shared history, and ending the relationship does not change the past, just the future.  Mediation is an opportunity to “wish each other well” and move forward to the next phase of life, and new relationships. 

Litigation conflict is destructive, your children and family will not thank you for not resolving the conflict – it affects them adversely too, and it is a part of their shared history as you continue to have those relationships for life.

8) Long Term Relationships vs. Short Term Wins 

Litigation is a ritualized “war” with winners and losers. Mediation is about long term relationships and compromise.

If you have children or other close family members you may want to attend future birthdays, weddings, graduations, or be at the hospital for the birth of a grandchild.  The reality is, if you have children together, you will always be connected in some way to the other parent.  Mediation can help you keep the lines of communication open, come to a deeper understanding of why things may not have worked out in your relationship, and be better able to tolerate seeing your ex in the future.

With litigation, its difficult to be civil to someone who tried to annihilate you during your divorce.  Many children whose parents are divorced will say that the biggest gifts their parents can give them is the ability to be in a room together and be civil to each other.

Reasons People Choose Mediation (real quotes from people who have experienced it)

• Either we solved it together – or a stranger would tell us what to do.
• It allows us to keep the friendship we still have.
• It was a fair process for both of us.
• Both of us wanted to do what was best for our child.
• I did not understand his/her position until we were in mediation, and once I did, I respected it and could move on
• Mediation made clear to me what the right thing to do was.
• The law is a blunt instrument – mediation allowed us to have a discussion and tailor our agreement to what we need and care about most.
• I hope we will be able to be friends in the future, now that the conflict is behind us.
• I feel like we both did the right thing.

YLaw’s team of lawyers has over 50 years of combined mediation experience.  We can walk you through every step of the process ensuring that your family matter is resolved with care, efficiency and fairness.   Choosing mediation not only saves you time and money but also promotes a healthier environment for resolving conflicts while prioritizing your well being.

Learn about our mediation program. Call us at 601-974-9229 or Contact us and let us help you navigate this challenging time with compassion and expertise.