How do you decide between mediation or litigation for a divorce?

Divorces fall primarily into one of two categories. Either you go through an uncontested divorce where you and your spouse agree on everything before involving the courts or you have a contested divorce, where you litigate the major issues and have the courts determine matters like custody and property division.

A litigated divorce can take more time and cost more money, but it can be helpful when spouses can’t reach an agreement. On the other hand, some couples who disagree on how to split up their property or create a parenting plan might be able to compromise with a little bit of help.

Mediation can help couples set their own terms and avoid a litigated divorce. Asking yourself a few questions can help you decide whether the mediated or litigated approach to resolving your divorce issues is better in your situation.

Have there been issues with abuse or manipulation in your marriage?

Mediation can help people overcome all sorts of disagreements, but it has its limitations. When one of the parties has no issue with bullying, gaslighting or manipulating the other party, mediation may not result in a fair and balanced agreement.

If your spouse has a history of emotional abuse, gaslighting or lying to get what they want, you may have to bypass mediation to avoid an unfair outcome.

Do you have any children?

No matter how negative your feelings may be, you can potentially set them aside when you know it is the best thing to do for your children. Mediation can reduce the conflict between you and your ex during the divorce, making it easier on your kids.

Setting your own terms for the parenting plan can also make the transition to co-parenting easier on the whole family. Couples with children may find that trying their best to minimize conflict is the best approach for protecting their children.

Do you have unique issues or a strong need for privacy?

If you have unusual marital assets like a business or extenuating circumstances like adultery that you would rather not discuss in court, mediation can be a way to sort things out privately. Not only will mediation give you more control and allow you to address unique concerns that the courts may not be able to properly assess, but it will also give you the protection of confidentiality.

Mediation is only successful if both parties equally commit to working together and compromising. If you know that compromise won’t work, then litigated divorce may be the better option in your case.