Litigation and Mediation – What’s the Difference?

02 April 2019

B&W image of an asian gay couple facing away from each other on their bed Being on the cusp of divorce is difficult enough to deal with emotionally. When you add in the multitude of decisions that need to be made, it can feel completely overwhelming. Despite there being two main sticking points in divorce proceedings – kids and money – coming to a proper resolution can take years. 

In addition to being a drawn-out process, it can have a real drain on your finances as well. This is where it is important to know what kind of divorce proceedings that you want to pursue. There are two main types of divorce proceedings: litigation and mediation.

Knowing the difference between litigation and mediation

If you are going through divorce proceedings, there is a good chance that you have to know your options. Still, you might not fully understand the difference between the two. And while it all may lead to the eventual divorce, there is an important distinction between the two.

The distinct difference between litigation versus mediation is that the former involves working against one another every step of the way. Litigation means that both sides hire their lawyers and pursue what they feel is their right and win. This can mean access to finances, property, custody rights to children, and anything else that can be claimed.


courtroom litigation microphoneThough it tends to be the much uglier of the two processes, litigation is very common. There is no willing agreement in litigation. It is a process of trying to prove why your side deserves the things that you are demanding, and the other side does not deserve those things.

Litigation can get pretty nasty quickly as the representation for both sides will try to find any advantage that they can. The upside here is that you could get all that you feel you deserve if you do not care about an amicable solution. The downside is that things will likely get nasty, and there will be no amicable solutions had.

While there may be the perception that litigation is, in fact, “taking control,” the opposite is usually true. The reality is that retaining a family lawyer for litigation sets in motion a series of events—things like applications, affidavits, court appearances that destroy assets and relationships.

Litigation is prudent in some cases where the parties have pursued every other means to resolve their issues with no success. While the outcome with litigation may be “just” in the face of the law, it is often not “fair”. The judge has to use the information put forth by the lawyers and in the affidavits with the assumption that both parties are being truthful.

Take, for example, where one party is basically telling the truth and the other is not, the outcome will likely be somewhere in the middle as there is simply not enough time or resources to achieve the real picture. To seek litigation to prove your point, make the other person pay, or to assume the outcome will be a win for you is unfortunately naive.


mediation offer handThis can be known in a number of different forms. Arbitration, interest-based mediation, collaborative law, or a hybrid are the most common methods. Mediation is where both parties will sit down with their representation and agree to split assets and custody.

This sounds like a more peaceful method. While it certainly can be, there can still be a certain level of ugliness involved here as well.

New mediation models like “Independently Negotiated Resolution” are process and results-driven and ensure that both parties are well equipped to make decisions. While mediation has been traditionally thought of for only amicable couples, new innovated models can achieve resolution for conflicted families as well. The key is to keep your assets in your pockets and preserve relationships.

Knowing the difference between litigation and mediation prior to the proceedings is essential. It can mean the difference between a successful proceeding and one of dirt-slinging. Ensuring you are an empowered decision-maker with financial and co-parenting knowledge is the best recipe for success.

Fairway Can Help

If you still have questions as it relates to mediation vs litigation, Fairway can help. Our team of mediation experts will work to ensure that you have the best understanding possible before your proceedings begin.

We believe that there is a better way of separating and divorcing. Don't go through the expensive process of litigation when there is a way that can save both emotional and monetary cost.

Related sites

Why Mediation is Better Than Going to Court

Mediation vs. Litigation: To Punish or Not to Punish, That is the Question

Mediation vs. Arbitration vs. Litigation: The differences you need to know about in business

Negotiation, Mediation, and Arbitration