Comparison Cost of Litigation Versus Mediation

Division of Property

Litigate: How your property is divided (if you and your ex-partner not in agreement) will be based on how aggressive your lawyers are, how the judge is feeling that day, and which of you has enough fortitude to fight harder.

Mediate: A professional will help you to determine a fair settlement that you are both satisfied with.

Cost in Real Dollars

Litigate: If there are children involved, and custody is disputed, attorney’s fees can easily cost $10,000 to $25,000 for each party, and in some cases, as high as $100,000 or more. You will end up paying for trials, delays, discovery, special advocates, countless phone conversations with your attorney, custody and/or psychological evaluations, and more.

Mediate: Cost for mediation and a consulting attorney, which is shared by the parties, could be as low as $1,500 - $5,000, depending on the complexity of the issues, and the willingness of the parties to work towards solutions and treat each other fairly.

Custody

Litigate: If there is a custody dispute, the court may be forced to make decisions for you and your family that you will not be happy with. They may also demand to bring in a special advocate who will investigate you and they may order invasive psychological evaluations for you and/or your children.

Mediate: As parents, together you can make intelligent decisions regarding what is in the best interest of your children.

Shared Parenting Time

Litigate: A judge who does not know you or your family will decide when you see your children and how long your visits with them will last.

Mediate: As co-parents, you can experiment with schedules and shared parenting time and see what works best for you and your children.

Communication

Litigate: Once court proceedings start, you will be advised to allow your attorney to do all future communications with your spouse through her attorney (regarding the issues at hand).

Mediate: You can talk with each other and continue to work things out on your own, whenever possible, which saves both time and money. If things bog down, a professional problem solver can help you stay objective, resolve your differences, and create agreements that work for both of you.

Time Frame

Litigate: Since the court determines the timetable of your divorce or custody dispute, you have no control over how quickly the process will end. Even simple cases can drag on for years, or longer, if the court is overloaded or the opposing attorney uses delay tactics.

Mediate: You and your ex-partner control the speed of the process and how quickly the issues are resolved.

Agreements

Litigate: Agreements made through this adversarial process often do not satisfy either parent’s needs or concerns, and may not address the needs of your children. These types of agreements are often broken by one or both parents because they were not happy with the result and feel resentment toward each other.

Mediate: Parenting plans, child support and spousal maintenance, are generally followed through with greater responsibility when both parents have participated in creating the agreement.

Your Day in Court

Litigate: No matter how confident you may be about your position, one day in court can easily negate that feeling. If you are put on the stand, the opposing attorney will use every nasty, malicious tactic available to them to destroy your confidence and humiliate you. All to often, they are very successful at this.

Mediate: All discussions are between you, your ex-partner, and your mediator. A good mediator will help you make the tough decisions, stay focused on the positive outcomes that can result through negotiation, and create a solid foundation for future communication between you and your ex-spouse.

Filed Declarations

Litigate: All accusations made against each other, by you, or your ex-partner become public records for all to see, including your children in later years.

Mediate: No accusations or declarations are filed against each other, your reputation remains clean. All mediated agreements and decisions are kept confidential.

Keep in mind that the above does not take into account the incredible stress of, preparing for, and waging battle in court. One of the most horrible experiences any family could go through.

Family Law currently costs unhappy couples a whopping $6 Billion dollars a year. The majority of these dollars are due to people's inability to handle the anger they feel, which causes the majority of litigation. Most of this money could have been used for the needs of the families who are usually forced to cut back on their living expenses during a divorce, but instead, it ends up in the pockets of their attorneys.

Mediation is now mandatory in many states and is becoming popular in others. Some states actually force couples into mediation with a court appointed specialist, and if present, their attorneys, the day they go to court. This is called a pre-trial. And although many couples avoid the courtroom drama through this method, decisions made under this type of pressure rarely meet the real needs of the family.

One of my clients had this happen to him (just before we met). It cost him $3,600, and his spouse paid $1,200 in legal fees that day. Many of the parenting time points of the agreement that was drafted between the attorneys and the specialist were so poorly thought out that my client and I had to rework them. Keep in mind that he had one of the top attorneys in his area at $425 per hour. This came to a grand total of $4,800 for one day's work between the two attorneys. His attorney then charged an additional $1,000 to amend and file the agreement after we had rewritten parts of it to better include the needs of his son.