Divorce Litigation vs. Mediation: What’s Right for You?

By Michael DiFalco

The divorce process can be a stressful time for any New York couple. Court dates, financial paperwork, and child custody battles can make the process more difficult.

In New York, couples have the option to go through mediation before going to court. However, direct litigation may sometimes be the best option depending on the circumstances.

If you’re thinking about divorce, you should know about the different options you have to approach the process.

Mediation Explained

Divorce in New York is either contested or uncontested. Uncontested divorce proceedings are the most streamlined, as they don’t require lengthy court battles, trials, or added litigation. 

Couples who want a quicker approach to finalizing their divorce may seek to go through mediation.

Mediation is an alternative dispute resolution process overseen by a neutral third party. During mediation, both parties will sit down alongside a mediator whose role is to help couples reach agreements on any number of divorce issues, such as:

  • Separation of assets including retirement accounts and savings
  • Ownership and distribution of the marital residence
  • Child custody
  • Spousal and child support
  • Division of debts
  • Miscellaneous issues 

Going through a mediator can help a divorcing couple resolve disputes peacefully without relying on the court’s intervention. In addition, when a couple can settle the terms of their divorce privately, they can save time, money, and emotional energy.

If you’re considering pursuing meditation, it’s essential to understand that not al mediators are licensed attorneys and only some mediators, like those at Aiello & DiFalco LLP, are experienced divorce lawyers. Non-attorneys cannot offer legal advice regarding a divorce. The role of a mediator is to facilitate conversations and resolve any contested issues, but hiring a divorce lawyer who also works as a mediator can ensure that the agreement considers all of the possible legal issues.

 Sometimes each party hires their own attorney to consult with and provide legal advice and strategy during the mediation process, but that attorney takes a “back seat” in discussions, not attending the mediation sessions, and ultimately is tasked with reviewing the draft mediation agreement.

In bypassing litigation, couples can often resolve their divorce in a few months rather than standard litigation proceedings that can become delayed. On average, you can expect a contested divorce in New York to take upwards of a year to finalize. 

Unfortunately, many contested divorces result in intense disputes between spouses, and when you cannot resolve issues independently or with the help of a mediator, litigating in court may be the only option. 

Litigating a Divorce in New York

Litigation offers the most comprehensive divorce process because a judge will oversee the entire case from start to finish. Any concerns during the divorce can be addressed by your attorney in court and handled appropriately.

Additionally, litigation can provide relief for spouses facing challenging situations, such as:

  • Complicated financial issues involving substantial assets or income
  • Concerns over unfit parenting, anger management, substance/alcohol abuse, or denying access to the children
  • Violent or aggressive spouses
  • Separate property issues
  • Business interests, concealed assets or transferred property

Although litigation is a more costly and time-consuming process, it’s often the only choice for some couples, especially when there are complex issues on the line, such as high-value assets, real estate, businesses, and children.

If you find yourself at odds over your divorce or cannot reach a settlement through mediation, litigation will be the best course of action. You’ll need to hire an experienced divorce attorney if you plan to go to court. 

Litigation will involve many moving parts as the process goes through the courts. Some common elements in a New York litigated divorce include:

  • Filing the case
  • Service and summons
  • Response period 
  • Discovery demands and document review
  • Motion practice
  • Interim orders
  • Divorce trial
  • Judgment

The family law attorneys at Aiello & DiFalco represent divorce cases in Long Island and throughout the New York metropolitan area. Whether you plan to go through mediation or litigate in court, our team of lawyers is dedicated to fighting for you. Contact our office for a free consultation and case review.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.