Divorce Mediation vs Litigation: Which Is Right for You?

Find out what it means to litigate your divorce—and whether mediation might be a better way to end your marriage.

When you're about to get divorced, it can seem like you have to make a million decisions, not least of which is the process to use to legally end the relationship. It used to be that couples would simply take their divorce to court, but today there are alternatives—the most popular of which is mediation.

What Is a Litigated Divorce?

A divorce is "litigated" (or "contested") when the spouses can't agree on how to resolve the issues—like child support, spousal support, or how to divide property—and one of them files a divorce complaint with the court.

By filing a divorce complaint, the "petitioner" (the filing spouse) is asking that the court decide the outcome of the divorce and officially end the marriage through a particular set of legal procedures. These procedures require the spouses and the court to take specific steps and provide due dates for completing them.

A fully litigated divorce typically ends after a trial overseen by a family court judge. Although spouses can represent themselves in a litigated divorce, many choose to hire lawyers to provide advice, argue their positions, and navigate the court system and its procedures.

During a litigated divorce, the couple can settle at any time. If they do, they have converted their case to an uncontested divorce, which normally results in lower costs and a quicker resolution. But in reality, once they've started a litigated divorce, most spouses don't settle until shortly before trial.

Because of the timetable courts must follow, as well as the limited number of family court judges, it's not unusual for it to take a year or more to finalize a litigated divorce.

What Is Divorce Mediation?

Divorce mediation is a method of "alternative dispute resolution" (ADR). Its goal is to help couples settle their issues without lengthy and costly court battles. Mediation usually occurs in a relatively informal and non-confrontational setting, such as a mediator's office or even online. A couple can begin divorce mediation by simply hiring a mediator—no court filing is required to get started.

Mediators don't decide the outcome of the divorce. Rather, they attempt to help the couple reach a compromise and then typically create a marital settlement agreement. Once the couples reach this agreement, they have nearly finalized what's become an uncontested divorce.

The mediation process can be as short as one session, or last a few weeks or more. How long divorce mediation takes depends on:

the number of topics to be addressed
how complex those topics are (for example, if there's a lot of property to divide)
the time between sessions, and
the cooperation level of the spouses.

Mediation provides couples with much more control of the process than they'd have in a litigated divorce, particularly when it comes to pace and scheduling.

Although some mediators allow spouses to have lawyers with them in a mediation session, many spouses choose to represent themselves. Some hire a lawyer to consult with them behind the scenes. (Most mediators actually discourage spouses from bringing lawyers to mediation in an effort to foster cooperation and make sure that the sessions don't feel confrontational.)

What's the Difference Between a Divorce Mediator and a Divorce Lawyer?

Divorce mediators can have many different backgrounds: They can be financial experts like accountants, or professionals like psychologists, social workers, or marriage and family therapists (MFTs). They can also be lawyers. Nonlawyer mediators tend to charge significantly less than mediators who are also lawyers.

Even though many mediators are also lawyers, it's the function they serve that makes them one or the other—a mediator can't also act as a lawyer for either of the spouses.

Lawyers who serve as divorce mediators shed their usual advocate role and act instead as unbiased guides whose job is to lead the spouses toward a resolution of their issues. All mediators—including those who happen to be lawyers—must remain neutral in discussions and not give legal advice to either of the spouses.

Most mediators will prepare a written settlement agreement if the mediation is successful. What happens next depends on state law: In some states, nonlawyer mediators can prepare and file the necessary divorce paperwork with the court. In other states, nonlawyer mediators might be able to prepare the divorce paperwork but not file it. When checking out potential mediators, be sure to ask what services they provide and what tasks you might have to handle yourself.

What Happens After Successful Mediation?

A mediator can't formally end your marriage—only a judge can. Even when your mediation is successful, you'll need to take a few more steps to finalize your divorce. After you've completed mediation and have a marital settlement agreement, a court will review the settlement agreement and issue a final divorce decree.

Having to submit a marital settlement agreement to a court shouldn't factor into the decision of whether to mediate or litigate. No matter what, a court will have to issue the final divorce decree. If you're able to file an uncontested divorce as the result of a successful mediation, the court can finalize your divorce much faster than it would take to litigate the case to the end.

What's the Cost Difference Between Divorce Mediation and Litigation?

In litigated and mediated divorces, you'll have to pay court filing fees. But beyond that relatively minor expense, the cost of litigating a divorce is usually much higher than the cost of mediating.

In mediation, the main expense is the mediator's fee, which the spouses normally split. The price of a typical private divorce mediation is typically between $3,000 and $8,000.

In a litigated divorce, if you decide to hire a lawyer, you'll be paying attorneys' fees—not only for court appearances but also for the work your attorney does outside the courtroom. The longer the divorce drags on, the more work (and fees) you'll generate for your lawyer.

Another Option: Collaborative Divorce

If you're uncomfortable attempting to settle your divorce without a lawyer present, you might want to consider another ADR method known as "collaborative divorce." In a collaborative divorce, the spouses and their lawyers (who have been specially trained in the method) hold conferences to resolve issues. There's no mediator involved. If the collaborative process is successful, the spouses reach a settlement and can proceed with an uncontested divorce. If the collaborative divorce process fails, the spouses will likely move to litigation. Unique to the process, though, is that neither of the lawyers who participated in the collaborative conferences can represent the spouses in the litigated divorce. That fact gives everyone involved extra incentive to work toward a resolution.

The Most Expensive Part of the Divorce Process: Lawyers

Mediation typically costs so much less than mediation because of the fact that you don't need a lawyer representing you. You can certainly consult with an attorney along the way if you'd like, but the lawyer won't have to attend each mediation meeting, saving you money. Many mediators do encourage each spouse to have their own attorney to review the settlement agreement before signing it, though.

In a litigated divorce, having an attorney isn't required, but trying to navigate the complex court system on your own is daunting. Even when you don't have a lawyer, judges expect you to know and comply with court rules and make arguments backed by established law. Learning, understanding, and applying the law can take years to master—one of the main reasons people going through a litigated divorce hire an attorney.

To be fair, even when you don't hire an attorney for mediation, additional costs can crop up. You might need other professionals to assist in the process, such as an appraiser to assess the value of property or an actuary to compute the distributable amount of a pension plan. But these probably aren't costs you could avoid—you'd likely need to hire those same professionals in a litigated divorce, too. And working with these professionals in a litigated divorce would probably cost even more, because you'd have to pay them to appear in court to testify or to write a report to present to the court.

Who Should Consider Divorce Mediation?

For couples looking to minimize costs, mediation is a practical option. Indeed, for most people it's worth weighing the pros and cons of mediation.

For divorce mediation to be successful, both spouses must be committed to the process and the goal. A willingness to compromise is essential. If you or your spouse is already gearing up for an all-out battle, it's less likely that mediating your divorce will work.

Mediation also requires a level playing field. If either spouse has the upper hand, in one form or another, mediation often won't work. For example, divorces where there is ongoing domestic abuse typically shouldn't be mediated—rather, the victim needs a professional advocate. And narcissistic spouses who believe they can't be wrong about anything will usually sink any chance of a productive mediation.

Likewise, if a spouse is deceitful, mediation isn't really viable. For instance, mediation is probably a nonstarter where a spouse is suspected of hiding assets. You can't reach a meaningful settlement unless both participants are truthful about all issues involved, including everything they own.

And if your spouse is legally claiming that you're at fault for the divorce or already has a lawyer, you'll probably need an attorney of your own.

On the other hand, mediation can be an option even if you think you won't be able to resolve all the issues in your divorce. You might still be able to resolve some of the issues, which will narrow down the topics you'll need to litigate, saving you money and shortening the amount of time you'll need to spend in court.