The Truth About Divorce Mediation v. Litigation

Mythical Expectations of Divorce Court

Having spent years in the divorce litigation trenches (in our former lives as divorce attorneys), we've heard the following many times:

• "I can almost always get a better result, if I go to court and tell the details of my story there," and
• "I've been told that divorce mediation almost always results in less optimal divorce settlements, than litigation."

Of course, for many high conflict couples, it's natural to imagine a made-for-TV "shock and awe" style of court victory in a divorce or parenting trial - one that is hugely satisfying. Even less conflicted parties often assume that a divorce trial means "being heard" and achieving complete and satisfactory Orders from the judge.

Courtroom Realities

Most experienced divorce lawyers and other divorce court observers know, however, that it is asking too much of a judge not acquainted with your family's unique circumstances - to discern all truth from fiction and to dispense perfect justice after a hearing constrained by limits of time as well as court formalities and rules. As divorce attorney-mediator, Diane Neumann, has written:

The reality of a divorce court trial is that most litigants walk out of the courtroom feeling as if they have just been run over by a truck. Even the winner often finds his or her enthusiasm dampened by the warning they hear from their divorce lawyer: to prepare for the next legal round, when their ex-spouse appeals the judge's decision.

For most divorcing or separating parties, then, their feelings after trial are not those of elation, but of disappointment at best, and emotional and financial devastation at worst. In every instance of a delighted divorce court victor, of course, there is the other spouse who feels hugely defeated or even humiliated. The difficulty in such a polarized case is in predicting "which end of the stick" you will find yourself.

In many, if not most, litigated cases, the truth is that neither spouse feels they achieved any "victory." And, for couples with children, any short-term "spoils" of the battle may be considerably less valuable than the long term benefits of preserving a working relationship with the other parent. Morevover, even when both parties do find courtroom results reasonable, legal fees and emotional costs exact their toll on parties and their families - sometimes a crippling one.

Conclusion:  Your Divorce, Your Choice

To be sure, there are cases and issues where negotiation or compromise may be short‑sighted, and litigation with its opportunity to be heard is a risk worth taking. No divorce process (litigation, mediation, arbitration) is appropriate for all divorcing parties or cases.

Generally, however, divorce mediation is the sensible, affordable option that results in both parties having greater control, a more satisfying divorce experience and often, an optimal result for their family's moving forward in a positive fashion after separation and divorce.

So, what, then, is the the truth about divorce mediation v. litigation?

It is an important question, with no "one-size-fits-all" answer. For most couples, however, we believe mediation easily bests the scorch and burn, "War and the Roses", winner-take-all, lawyer fought, custody battle litigated approach to divorce! 

Christopher L. Griffith, J.D., M.S., and Lawrence F. King, J.D. are full-time Colorado divorce and family law attorney-mediators with Divorce Resolutions®, Colorado Center for Divorce Mediation^TM.  For more information, visit their award-winning website, with its divorce mediation:  frequently asked questions & myths and other family mediation resources, Colorado divorce law information with free planning tools and Colorado divorce forms, and "Best of the Net" parenting plan resources. (www.ColoradoDivorceMediation.com)

Chris or Larry can be contacted by phone at (303) 650-1750, or E-mail