mediation vs. litigation

The Real Value of Mediation

What does all of that money being spent on lawyer-driven divorce buy?  It seems that there are a lot of horror stories about divorce out there; both the expense and the results.  The following chart lists the outcomes that clients commonly want from a divorce – speed, certainty, better relationships with kids, and less fighting with the former spouse – and compares the results of mediated vs. litigated divorces.

Tell It to the Judge


I can list plenty of good, solid reasons why people going through a divorce should mediate rather than
litigate: saves money, improves parenting relationships, faster, more control over outcomes… I could probably go on. All logical reasons that really can’t be disputed much. Yet, only a small number of people choose mediation when it comes down to it. Why? Believe me, this is a question I ask quite a bit.

My theory is that people want to have their moment in front of a judge. Everyone wants to stand up
in front of an authority figure, describe all of the awful things their ex has done, and hopefully be rewarded with more money or time with the kids. This desire is so strong that people will risk everything to make
it happen. I was recently talking with a friend about his situation. I suggested that his outcome in
court might not be what he hoped for. He told me that he had consulted an excellent attorney who informed him that, in fact, he has virtually no chance of improving his situation. But he filed anyway. He explained this by saying: if I take my case in front of a judge, I can finally be heard and then I will know for sure that I have done everything I can to win custody. I don’t know that this reasoning will serve him, but I do know that it’s a powerful force. 

Maybe better to consider what outcomes you really want and how best to achieve those.

Start with a Mediator

With roughly half of all marriages ending in divorce, transitioning from married to not-married has become a regular rite of passage.  Unfortunately, many people are scarred from this experience.  It’s never a picnic to end a committed relationship, divide up a shared lifestyle and develop new arrangements for your children, but some paths through that mess are easier than others.  Most people begin their divorce process by contacting a lawyer. Legal advice is a critical step in the process, but not necessarily the best starting point, since who you see first likely frames the situation.

Here’s the problem: law, particularly civil law, is designed to help bring justice to victims of wrongdoing.   It is oriented toward enforcing rights and distinguishing right actions from wrong.  Anyone who has ever been in a relationship or even known anyone who has been in a relationship knows that love operates on a completely different set of rules.  While I may not believe that “all is fair in love and war,” I recognize that when it comes to interpersonal relationships, perspectives are completely subjective.  When someone breaks up with us, we feel hurt, angry and wronged, but that type of wrong has little to do with legal definitions. 

And yet we keep trying to solve this problem of broken hearts and homes through a system of justice.  If you take your broken marriage to a good lawyer, she will define your legal rights, defend you from anticipated or perceived injustices from your ex, and attempt to get the best settlement possible for you.  Whether or not that will solve your problem most efficiently or is in the best interest of your children, that is what a lawyer does.  When you’re a hammer, every problem is a nail.   

The purpose of mediation is to resolve a problem.  It assumes that the people involved in a conflict know best how to solve it.  It is not interested in who is more right or wrong in a given situation, only how to move forward from the existing situation to a solution that both parties can live with.  The problem is framed as a challenge for the parties to address together rather than a win/lose predicament. This results in couples developing parenting plans or financial plans that consider what is in the best interest of the children first and both adults secondarily.

I’m not saying that one should ignore the legal implications of divorce.  In fact, marriage is a legal institution and therefore there are legal implications to ending it.  Dividing properties, retirement plans or business can be extremely complex and legal counsel provides a well-trained set of eyes to help sort it out.  I’m suggesting that where you start the process impacts how that problem is framed, how it will be solved and ultimately how the parties view the situation years hence.  I recommend legal counsel to everyone who goes through a divorce or separation.  Consider the specialties of law paralleling the specialties of medicine.  If you have back pain, by all means consult a back surgeon, but don’t start there.  Begin with your family practice doctor or maybe a physical therapist.  If you need surgery, you will be grateful for the knowledge and talent of a good surgeon, but first employ other, less invasive means of alleviating your pain.