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Mediation versus Litigation

April 22, 2020

Although there are several other approaches to resolve marital disputes, the purpose of this article is limited to juxtaposing mediation and litigation. Each way has its own pros, cons, and limitations.

But consider this question first (or learn the hard way)

When deciding which approach is best for you, seriously consider whether you want to spend a large portion of marital resources and possibly go into debt in contested litigation and support the lawyers and their families, or whether you and your spouse would prefer to have the resources to put your own children through college and support your own future financial security by mediating?


Mediation is an approach where both parties work together with a neutral person who helps the couple to reach an amicable and fair agreement. The mediator does not represent either spouse, but acts as a “facilitator” and offers various kinds of information and suggestions to the couple to help them reach an agreement. Mediation can help you save time, money, and reduce stress in relation to litigation. Also consider that by mediating your difficulties, you are setting a good example for your children as to how to resolve problems.

Mediation is a very user-friendly approach: In a non-coercive and confidential environment, mediation allows each person to hear directly, unfiltered through attorneys or others who may have a competing agenda, what the other person’s real concerns are so that these concerns can be properly addressed.

However, I believe that mediation is not an appropriate approach where there is an addiction, domestic violence, or a wasting or secreting of assets and income. In these situations, court and/or other intervention is required.


Of course, litigation is another way of resolving marital disputes. Essentially, because you and your spouse are unable to reach an agreement, a judge is going to decide matters for you. But even in litigation, people generally reach an agreement before the judge is called upon to make the decisions, but after people have already exhausted significant resources.

Most people could easily identify some of the cons of litigation

  • costly
  • time consuming
  • much more stressful
  • children suffer

But what are some of the pros?

  • obtaining protection and related relief from an abusive spouse
  • limiting the size of the “marital estate” subject to division with a spouse
  • minimizing the impact of a spouse wasting marital assets or incurring debt to support a gambling problem or addiction
  • minimizing and uncovering a spouse hiding assets

Which approach would be better for you, mediation or litigation?

Depending upon your circumstances and goals, you do have a choice about whether to pursue mediation or litigation. Lawyers know that they can make the most money in contested litigation. Lawyers who do not mediate are much less inclined to recommend mediation and steer business elsewhere. You need to do “the math” and become educated.

That is why it is critical that you consult with the right kind of lawyer to further explain the approaches to you and which would be the best approach given your particular facts and circumstances. The right kind of lawyer is one who will provide you with an honest and realistic assessment of your case based upon proven experience and knowledge.