When Faced with Divorce, Should You Choose Litigation or Mediation?

choosing mediation vs. litigation
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Because divorce is never easy, most couples are in a hurry to finalize and move on. However, couples need to ensure they are making good decisions that will help them later on in life. One of the first and most important decisions that divorcing couples must make is whether to finalize the divorce through litigation or mediation. While both processes are legal methods by which to end a marriage, there are significant differences between them, and understanding those differences will help the divorcing couple make a good decision about which method is right for them.


Litigation is a formal legal process that involves the couple, their attorneys, and a judge. Like in any other legal situation, the judge hears evidence about the couple’s marriage from both sides and then makes legally binding decisions regarding finances, assets, children, and other variables.

Attorneys play an important role in the litigation process. They give legal advice to their clients and help them build their cases.


Like litigation, mediation results in decisions being made about finances, assets, children, and other shared responsibilities. However, divorce mediation involves less formality and more emphasis on the couple’s collaboration and joint decision-making.

Instead of working with attorneys to create cases against one another, divorcing couples make their own decisions with the help of a mediator who knows the law and can offer legal information – though not legal advice. The impartial mediator facilitates communication and decision-making by asking questions and providing information. This encourages the couple to work together to make decisions that benefits all parties involved.

Factors to Consider to Help You Choose

Whether to choose litigation or mediation depends on the couple and their needs, as there are benefits and drawbacks to each process. The following factors often play a role in which process couples choose:


Children are of primary concern in most divorces. Most couples worry about the effect the divorce will have on their children’s emotional and mental health. In general, the mediation process reduces the impact of divorce on children. Because mediation requires a couple to begin working together collaboratively to make joint decisions, it often prepares the couple to continue to co-parent despite the divorce.

Going through mediation also means that children don’t have to spend time in a courtroom and won’t be called upon to testify or make a decision regarding with whom they would rather reside. Also, decisions regarding parenting and custody arrangements are not left up to the judge; parents can create their own custody arrangements. This often makes parents feel more in control.

Time and Finances

The fees for mediation (about $2,000-$5,000 total according to the National Conflict Resolution Center) are far less than the fees for litigation (about $20,000 per person). Further, because of clogged court schedules, litigation can drag the divorce on for two or more years, while divorces performed using mediation can be completed in a few months. Couples who are looking for a speedy end to the marriage and who don’t have much money to spend on divorce may choose mediation.

Ability to Communicate

Finally, selecting mediation means that both parties are willing and able to communicate with one another. In contentious divorces, this is not always the case. If one party refuses to communicate or acknowledge that the divorce is happening, mediation may not be an option.

Getting divorced is not easy, and it takes a toll on a couple’s emotions and finances. Fortunately, the options of mediation and litigation provide different avenues to successfully terminate a marriage based on a couple’s needs.




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