Mediation vs. Litigation in Kentucky Family Law Cases

Those facing divorce or a child custody dispute in Kentucky have many stressful decisions to make, including whether to mediate the disputed facts or litigate them in front of a judge. Each choice has financial, privacy, and scheduling implications, and impacts your  relationship with the ex-partner.

An experienced family law attorney can help you understand the pros and cons of both approaches, guiding you to a decision that you’re comfortable with. Your attorney will also prepare you in practical ways to handle the likely proceedings. 

What are the Differences Between Mediation and Litigation?

Both mediation and litigation are ways to achieve a legally binding solution to disagreements that arise in divorce and custody cases. Many of these are common situations such as: 

1. The equitable division of shared assets
2. Disagreements about custodial parenting
3. Spousal support (alimony) amount

Mediation may be required by some Kentucky family courts before scheduling a trial. It results in a solution that each party has had an active voice in creating. Mediation is a confidential process in which the parties work with a neutral facilitator to reach a mutually agreeable compromise on the issues. The mediator helps to find common ground and guide conversations to a binding agreement to present to a judge for approval. If mediation is unsuccessful, the case is referred to family court for a judge to decide.

Litigation is a trial-like court proceeding in which a family court judge hears evidence and testimony from both sides then has the final say. This is usually reserved for cases in which the parties could not agree on specific terms of custody, division of assets, or other issues. The judge’s decision is final and requires additional hearings to amend (if new evidence is presented or circumstances significantly change). A judge’s decision may not be crafted as flexibly as a mediated settlement.

When is Mediation Required in Kentucky?

Whether mediation is encouraged or required depends on the court jurisdiction. In some places it is a mandatory step before a trial. However, in cases of domestic abuse, mediation is waived unless the victim specifically requests it.

State Law Makes Joint Custody the Default Position

In 2018 Kentucky was the first state to enshrine equally shared joint custody as the default position for divorcing partners. Since then, fewer parents are willing to invest the time and money in fighting for sole custody, making mediation and negotiation more common than litigation. 

The Costs of Litigation vs. Mediation

1. Financial. The out-of-pocket cost of litigating a divorce or custody issue is often $10,000 or more, compared to mediation, at about $200 per hour or about $3,000 in total. The time and expense of trials has led to 60 percent of Kentuckians resolving family cases through mediation. 
2. Time and Privacy. Settling a divorce or custody case through litigation is entirely dependent upon the court’s schedule, which can be backlogged, requiring months of waiting. Mediation is handled at the convenience of the parties involved, and can even be done virtually, saving significant travel time and duress.

When family matters are litigated, privacy is no longer a right. Court proceedings are public record, allowing anyone with interest to search in databases and court files. This can expose financial details, parenting and mental health struggles, and other personal information to the public. Mediated resolutions are kept confidential.

Litigation Can Be Necessary

Litigation allows both parties to obtain information through the discovery process, interrogatories, and depositions. These can be important if one is hiding assets or has total control of the shared finances. A history of domestic violence, threats, or intimidation can also rule out mediation as a route to compromise.

Finding the Right Path for Your Situation

Howell Law PLLC attorneys can help you determine whether mediation or litigation is best for your situation. They may recommend attempting mediation to narrow the issues that a judge needs to decide. Call for a consultation today.