Mediation vs. Litigation in Divorce

Litigation

Litigation is an adversarial method for resolving disputes, much akin to battle. As such, an attorney can only represent one party, and is ethically obligated to fight for their client’s interests. When both parties in any disagreement are competently represented, it is assumed that the strongest case for each party will be presented, and an independent decision-maker (judge or jury) will select a winner.

Cost. It is very costly to engage in this process. Not only is there the hourly rates of two attorneys, but there are fees for experts. Custody evaluations are common in litigated divorces, and those alone can run from $5000 to $10,000 or more. There are the costs in time and stress, as you prepare for the battle that may be years in the future, after custody evaluations, discovery and depositions are taken. The animosity generated between parents during this process is very detrimental to children.

Vindication. People often imagine their "day in court" where they will be allowed to tell their side of the story to the decision-maker and receive the justice they deserve. In fact, less than 3% of litigated cases actually proceed to trial. 50% settle "on the court house steps," within 3 days of trial. Unfortunately, these settlements usually feel unsatisfactory to both parties, and come after most of the costs of litigation have been incurred, and animosity between parties has been maximized. It also takes many months, if not years to get to this point. Consequently, parties neither feel vindicated, nor end up with an agreement that is tailored to their needs. Finally, the legal system allows the losing party to appeal, possibly making the trial the beginning, rather than the end of the dispute.

Mediation

Mediation is a process of facilitated agreement that seeks to find the best possible solution for both parties. Unlike in litigation, the mediator works for agreement rather than either party’s interest. Rather than a battle, mediation is more like a journey. Mediation comes to a successful conclusion in 85-90% of cases. Mediated agreements are much less costly than litigated agreements. More importantly, the process tends to reduce the level of conflict and hostility between the parties, which is of great benefit to children, family and friends. Agreements reached through mediation result in higher rates of compliance (e.g., support payments, child sharing), and parties are better at post-divorce communication and negotiation.

Key Benefits

• Mediation saves money
• Mediation fosters cooperation, not antagonism
• Mediated agreements are more tailored to the family and more satisfying
• Mediation takes weeks, not years