How to Get Divorced: Mediate or Litigate?

Suppose that you and your spouse have reached the point where you know divorce is inevitable. Now what? Are you going to give many thousands of dollars to lawyers to help you fight with each other, or are you going to try to keep your parting as amicable as possible? For most couples, mediation is the best approach.

Mediators are experts in facilitating negotiations. One mediator can help the two parties communicate what matters to each and why, focus on one issue at a time, explore ideas about how they could resolve issues, and negotiate constructively to develop a plan that each party can live with. The parties – not a stranger in a black robe – make the decisions about how to restructure their family and divide their assets and debts. It is their plan, so they are likely to follow through and do what they agreed to do.

Each party can confer with a lawyer so that they know their rights and know what is reasonable to expect. Then, in a private, confidential setting, the mediator will help the parties develop their settlement. Each can check with a lawyer again before signing the agreement they have created.

Key Benefits 
The key benefits of mediation involve time, money, and sanity.

Mediation is usually much faster than litigation. Couples often resolve all issues in just two to four mediation sessions over the course of two to ten weeks. Going through the court’s process (litigating) generally takes more than a year.

Most mediators charge lower hourly rates than lawyers, and the work gets done in many fewer hours. Therefore, the parties get to keep much more of their wealth. In a litigated divorce, each party is likely to pay $15,000 to $100,000 to his or her attorney. In contrast, many ex-couples can develop a mediated parenting plan and property settlement agreement for $2,000 or less.

For many people, separation and divorce involve intense waves of grief, anger, anxiety, and pain. Litigation is a hostile process, so it often makes people more angry, frightened, and/or depressed. Mediation may not be fully cooperative, but at least it does not add fuel to the firestorm.

A lawyer’s job is to advocate for their client’s interests, so in a litigated divorce, there may be no one representing the children’s best interests. A family mediator is required to stay neutral between the parents, but can help them both pay attention to how the plans they are making will affect their children.

In mediation, nothing goes into your written agreement unless both parties say to put it there. The result may not be a jubilant win-win that sends everyone home happy, but it will be a plan that both parties think is workable and acceptable. You do not need to worry about what a judge will decide; the parents have already made the decisions.

In Parting
I became a family mediator because, during my own divorce, I experienced how slow and ugly adversarial litigation is. I saw the damage it did to my children, my ex-husband, and me. If there is a chance that mediation can help an ex-couple resolve at least some of their issues, I highly recommend that the parties try the process.

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Virginia Colin
Virginia L. Colin, Ph.D, is a professional family mediator and the Director of Colin Family Mediation Group LLC. Formerly a research psychologist and an Internet talk radio show host, she has been providing family mediation services since 1999. She specializes in helping couples and ex-couples develop co-parenting plans and financial agreements that support their children’s healthy development and their own well-being. She has helped hundreds of couples negotiate the terms of their divorces. Having survived a nightmarish divorce, Dr. Colin actively supports divorce reform efforts, helping people take a lot of the pain, financial cost, acrimony, and trauma out of divorce. Dr. Colin has written two books: Human Attachment (1996), a comprehensive guide to attachment theory and research, and, with Rebecca Martin, The Guide to Low-Cost Divorce in Virginia (2014). She is a former President of the Academy of Professional Family Mediators. For a free consultation with Dr. Colin, email