Can I Switch Over to Divorce Mediation if I Have Already Started Litigation?

divorce mediation

While it can be challenging to get off the path of divorce litigation once you have started down that road, it is not impossible. The two resolution methods are not mutually exclusive.

As a matter of fact, at any point in time during litigation, a divorcing couple who begins to feel that this is not the right fit for them can switch over to Mediation. Of course, both spouses must be in agreement for this to happen. If you find yourself desiring a change but are unsure whether your spouse feels the same way, it is worth having that discussion to find out if you are on the same page.

Divorce Litigation “Cons”

Divorcees who initially file with the Court can, over time, become frustrated by the lack of progress. Things may not be moving along as quickly as they like. They may feel that too much time is being wasted, leading to unnecessarily higher attorney fees. They may also not be pleased with how their family is being affected by the process. These are all very real concerns and, unfortunately, often unavoidable negative aspects of the litigation route.

Once their case is taken before a Judge, divorcees have very little control over timing. It is very common for Judges to require that attorneys check in with the Court first thing in the morning, only to have them sit and wait hours for their case to be heard. During this waiting period, neither lawyers nor their clients are allowed to do any other work – no emails, no laptops, no talking – out of respect for the Court. But, the clock keeps ticking.

If children are involved, more time must also be spent waiting to be seen by family services.

Further “unproductive” time is also spent on communication between attorneys and clients that is necessary to fulfill certain protocols required by the Court but which does not directly help the client.

Divorce Mediation “Pros”

Mediation can offer a customized outcome that better fits the needs of both parties and their children (if children are involved). In fact, use of Mediation often helps to save a co-parenting relationship even if the marital relationship ends. This method offers a couple time to work out parenting issues to their mutual satisfaction, which usually is not the case before a Judge.
Mediation generally allows divorcees to tackle specific significant issues in more depth than litigation provides, and at often a fraction of the cost, since attorney fees are not racked up while waiting to appear before a Judge.

What About Attorneys?

If you decide to switch over to Mediation after starting out in litigation, you do not have to give up your lawyer. In fact, I generally counsel against doing so. A Mediator is neutral and as such, cannot give specific legal advice that benefits one party over another. This is where having your own attorney comes into play. Also, you will still need to go before the Judge at the end of the Mediation process to get your divorce finalized, so your lawyer should accompany you then.

It may be that you did not learn about Mediation until after your litigation started – and even then, you may only hear about it by word of mouth from an acquaintance who has gone that route in the past.

This is because many attorneys are reticent to bring it up. While a Massachusetts ruling mandates that lawyers notify prospective divorce clients about the option of using alternate dispute resolution (ADR) methods such as Mediation or Collaborative Practice, many attorneys do not do so. Instead, they encourage you to go the route of litigation. This could be due to any number of reasons: they may not be comfortable with or know enough about ADR; they may not offer the service themselves; or (getting down to the bottom line) they may realize that it is more profitable for them to have clients go through litigation.

Popular media channels such as TV shows and movies rarely feature any method other than litigation when a couple is pursuing divorce—the “fireworks” of litigation is more dramatic. On the rare occasion when Mediation is portrayed, Mediators often come across as ineffective or out of touch.

While it is best – and cost-effective – to start by meeting with a Mediator when seeking a divorce, remember that it is never too late – at any point in the process – to switch over from litigation.