Is Mediation or Litigation the Right Choice for My Divorce?

Julia Garwood, Family Law attorney and Certified Family Law Specialist, San Diego, Collaboartive Family Law Group of San Diego

by Julia Garwood, Attorney at Lawjulia-garwood-photo
Family Law, Mediation and Collaborative Divorce
Garwood Family Law and Mediation

When heading toward the end of a marriage, many people ask what the difference is between divorce mediation and litigation. And beyond that, which one is right for them. There are numerous differences between divorce mediation and litigation, however the primary three include cost, decision-making and privacy.


Mediation is often much less expensive. Litigation can cost as much as six times the amount as mediation.


A judge makes all the decisions in the case of litigation. This includes decisions about your children, division of property, alimony and even pets. However, through mediation, you and your spouse make the decisions together.

Level of Privacy

Mediation occurs in a private conference room and details never have to be disclosed publicly. Because of the public nature of the courtroom, when your divorce is litigated, all information is public record. That means all the details, including your finances and “dirty laundry,” are available to the public.

In order to help you decide whether mediation or litigation is right for you and your personal situation, below is a list of frequent situations when mediation and litigation are used.

Mediation is often used when:

  • You and your spouse mutually have decided to get a divorce.
  • You and your spouse can have a rational conversation in the same room.
  • You both realize that divorce is happening and you’re able to rationally approach the outcome.
  • You’re both willing to try to agree on issues like alimony, child custody, division of assets and child support.
  • Cost is a factor and you and your spouse want to incur as few costs as possible.
  • You both want to be active decision makers regarding the details of your divorce and don’t want to leave the final decisions for a judge to make.

Litigation is often used when:

  • One or both of you aren’t open to mediation.
  • One or both of you have difficulty conducting reasonable conversations.
  • There is a history of domestic violence or child abuse during the marriage.
  • Either you or your spouse has a drug or alcohol problem, impeding rational thinking and decision-making.
  • One or both of you is stalling or gathering information on the other spouse and don’t have any intention to settle. Sometimes spouses agree to mediation to stall the process or to gather information for later use against the other spouse during litigation.

While we’ve included some basic guidelines above, every situation is different. Consulting with a divorce attorney who is trained in Collaborative Family Law and/or a Certified Family Law Specialist including members of professional associations such as the Collaborative Family Law Group of San Diego, is the best avenue.

Division of Marital Assets in Divorce: Fairness and Respect

A recent Forbes Magazine article offers advice specifically to women about assets in a financial portfolio that they might overlook when working on the division of those assets in a divorce.

From a practical standpoint, it’s true that people don’t always clearly identify or think about all of their “assets” at the time of divorce. But those of us involved in the Collaborative Divorce approach believe the focus of a divorce should not be oDivorce and Fighting, Boxing Glovesn “stuff.”  Advocates of Collaborative Divorce focus on the process of making good decisions without alienating one partner from the other and coming out at the end with respect and with the relationships among members of a family preserved moving forward. Simply because two parents will no longer be married doesn’t mean family ties vanish.

It is also troublesome that there are still individuals addressing women in this way, reinforcing an unfortunate stereotype that we firmly reject. Collaborative Divorce is about fairness, cooperation, and equal treatment whether for men or women, whether in traditional or same-sex marriages.

If you’re considering divorce, consider the healthier alternative provided by a Collaborative Divorce. Contact one of our members to learn more about the Collaborative Divorce process and how it can benefit you and your family. A divorce doesn’t have to be a fight, and it doesn’t have to hurt.