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Family Law Mediation vs Litigation

Time and Cost Comparisons A major difference between mediation and litigation is cost.  Most estimates put the average cost of litigated divorce at $20,000.  If there are conflicts around child custody or support, this figure will go up real fast.  Trials and hearings are not cheap.  Contrast this with divorce mediation.  Most estimates put divorce mediation costs at around $3,000 to $7,000.  And this cost is typically split between both parties. Time is another major difference between mediation and litigation.  In family law litigation each party must find their own lawyer. Then each party must file and respond to a variety of legal forms.  This often takes months.  “Discovery” takes place next.  Discovery is a process where each attorney requests and shares information with the other party’s attorney.  This naturally takes a lot of time, especially if one or both attorneys want to make the process difficult.  Next, motions for orders are filed, responded to, and hearings are set to dispute and argue the orders.  This process will last many months, and often will last for years as each side disputes the claims of the other.  In the end the judge makes a judgment based on what he or she thinks is best for your family and what fits the law.  In the case of child support in California, all the fighting and arguing will simply result in a ruling by the judge based on a mathematical formula. However, in divorce mediation, you will meet with a mediator for a few sessions.  During that time you work to come to an agreement about your divorce, finances, and children.  All the required discovery and disclosures can be made during this time.  Once you have an agreement that YOU like, the request for a dissolution (divorce) order forms can be filed immediately.  Most divorce mediation can be accomplished in less than 4 sessions.  And in most cases you won’t even have to go to court for final dissolution orders.
Family Relationship Differences Divorce ends your marriage, not your family.  If you had children with your spouse, you and your spouse will always be their parents.  However the way you parent will change.  Often family law mediators partner with a therapist to provide valuable insight into co-parenting best practices.  At The Gentle Divorce, Dustin Stucki is both an Attorney and a Therapist. Children will suffer during a divorce.  However it makes it worse when their parents act in a contentious manner and fight with each other through the process.  Divorce litigation is an adversarial approach where you are against your spouse.  This environment can add to the stress children feel during this sensitive time in their lives. Mediation is a collaborative approach where you and your spouse are working together to develop an agreement that BOTH of you are willing to accept.  You can preserve a good working relationship with your spouse which will benefit your children.

Confidentiality and Privacy

Mediation is confidential.  You will meet in the comfort and privacy of the mediators office.  A mediator’s files are confidential.  In mediation, you are able to freely discuss your concerns and desires without fear that your spouse will twist your words or use it against you in court to get what they want later on.  Even if mediation is unsuccessful and your divorce goes to litigation, the mediation process stays confidential and cannot be used in court.  In contrast, with divorce litigation and trial court files, hearings, and trials are public records that anybody can observe.


In litigation a judge determines what is appropriate for YOUR family.  Divorcing couples often find it surprising that after they spent tens of thousands of dollars and countless hours, neither get what they wanted from the judge. Mediation allows you and your spouse to develop an agreement that is based on your goals and desires.  If mediation is not successful, you always have the option of litigation. However, it is very difficult for spouses to come back together for mediation after experiencing the intensity and hostility of litigation.
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