Divorce Mediation vs. Litigation

What do you picture when you think about divorce proceedings? For the majority, the image most commonly conjured up is a couple sitting miserably with their respective lawyers arguing in front of an impassive judge in a dingy courtroom filled with strangers who are about to hear all of the details of your personal life.

This is a common scene when couples choose to litigate their divorce, and it certainly isn’t pretty. Divorce is never pleasant, but it doesn’t have to be so bleak, daunting, and adversarial for each party in the relationship.

While litigation does have its uses, most couples would benefit from its primary alternative – mediation. Mediation gives couples a much less adversarial, and more collaborative, method of legally ending their marriage in which both parties work together to find a mutually acceptable settlement with the guidance of a trained professional.

So what are the primary differences between mediation and litigation, and why would many couples benefit from the mediation process versus litigating their divorce?

One of the primary differences between the two is an atmosphere of cooperation in mediated separations versus the competition and antagonism found in litigation. The mediator is jointly retained by the couple and then he/she acts as a neutral third party who helps negotiate a fair settlement that both parties can agree to and feel good about. In litigated divorces, each party retains their own attorney who then works to get as beneficial a settlement as possible for their client. In short, litigation works by pitting one party’s interests against the other, while mediation allows them to work together for their mutual benefit and the benefit of their families.

Another major difference between litigation and mediation is the need to appear in court. Litigation often involves lengthy court battles that take place before a judge. This is a major factor in drawing out the divorce process, as the timeline for the proceedings are entirely dictated by the court’s calendar and your attorney’s trial schedules.

Mediation allows you to create your own schedule, determined exclusively by the availability of the couple and their mediator. You also don’t have any court appearances in mediation. Everything is completed from start to finish, in the privacy of your mediator’s office. According to many testimonials, the process can be completed in as little as three months, which is far preferable to the years-long endeavor litigation can commonly become.


It’s hard to express just how beneficial this is to the psychological and emotional health of the couple. Particularly when children are involved. A slow, grinding trial takes a huge toll both emotionally and financially on an already stressed couple, which can cause an amicable split to become an embittered and hateful separation.

A final note on the differences between litigation and mediation is in how settlements are reached. In litigation, once proceedings have been completed, a judge then renders their final decision on the marriage settlement. If one or both parties are unsatisfied with the settlement, they are essentially stuck with what the judge has decided. All of the control In the decision-making process has been taken away from the parties.

By using a mediator for their divorce, couples work together to co-create their own settlement terms. Each settlement reached through mediation is custom tailored by the mediator to fit the express needs and mutual interests of each party. Statistically, parties tend to adhere to mediated settlement terms much more frequently than litigated judgments because they have been actively involved in creating those final settlement terms.

Divorces don’t need to end in the couple having a long, drawn out court battle that leaves a bitter taste in each of their mouths and ultimately an embittered relationship. By using the services of a mediation specialist like McNamee Mediations, you can end your marriage much more amicably and peacefully, thereby creating a much healthier foundation for moving forward as you each prepare to move on to the next chapter of your lives.