Why Mediation Works and Why Litigation Has So Many Pitfalls

To understand why mediation works, it’s important to understand what litigation means.  Litigation is a very formal, inefficient system that is designed to protect the parties through use of standard processes and experienced (and costly) lawyers who will navigate it for you.

The reason litigation is so difficult is not the system, it’s the parties.  Parties who litigate are not communicating or working together, so your conflict is protected and processed through what many see as an inefficient and stressful court system that is actually built to protect you.

Have you been to the DMV to get your driver’s license renewed?  Litigation is like the DMV on steroids.  You never quite know how long the wait will be, you generally spend 2-3 times as long as you would like waiting in line, you are required to bring very specific documentation and if you are missing any you need to go home and come back another day and wait in line again, and when you finally get your picture taken and see your new driver’s license you are rarely happy with it and there is no recourse, you’re stuck with it.

Now add to this visual that you are going with another person who also needs their driver’s license renewed, and you each have to pay a DMV “specialist” (i.e., a lawyer), $500/hour to wait with you, to talk to the clerk for you, and to fill out your paperwork for you.  Lastly, imagine having to do this monthly for over a year, taking time off work or finding child care, sometimes finding the DMV is closed and you have to come back again, just to get your driver’s license.

This is close to how you feel when you litigate your divorce, except that when you litigate your divorce you are talking about your children, your life savings, your home and assets, your future income and support and it is all done in  a public courtroom with others listening to all of the discussions while your lawyers and the judge talk to each other and decide what you should do, while you just stand there.

Why mediation works:

1. Your sessions are done in private.
2.Your mediator will guide you through all topics in an efficient process that allows you to complete your divorce in 2-3 months.
3. Your mediator works for both of you, so you pay only one hourly fee together, and it is significantly lower than a lawyer’s billing rate.
4. You make 100% of your decisions regarding the children, the children’s expenses, the financial and property divisions and any child support or alimony.
5. A lawyer and a judge will still review your agreement to make sure it is fair reasonable and not unconscionable.

6. You know your family and children better than anyone, especially more than a judge who makes decisions in a very short amount of time without your direct input or dialogue.  You are allowed to craft a parenting plan together that is most supportive for your children and their specific needs.
7. Your children hear that mom and dad are working together to make decisions for them, so when you both tell them you both still love them, they actually believe you.
8. Your mediator will encourage you to discuss areas together between sessions, if you are able, so you can align on what is best for everyone.  If you can’t do so, your mediator is trained to guide you toward your best decisions.
9. You will create decisions together, which allows you to a) take ownership of your divorce, and b) communicate in a healthy manner and be able to always anchor on your mediation discussions to “right the ship” when it goes off course post-divorce.
10. You will give yourself the best path to finding a healthy relationship post-divorce because when you mediate you don’t create much of the baggage that newly divorced couples carry with them into new relationships, such as dwelling on horror stories about court or what your ex did; instead, you will be able to move on more quickly in a healthier way.  And you will be envied by others who can’t do so.

The last reason mediation works is that even if you can’t decide on every issue during mediation, if both parties desire you can still carry forward the decisions you did make, and pursue litigation for only the remaining issues, which will significantly reduce your stress, lawyer fees and negative impact to your children.  There is really no reason not to start with mediation (and many couples find they can mediate their entire divorce).

Michael Cohen, who also earned his CPA, is an accomplished business leader with extensive experience in people management and cross-functional projects that required him to often mediate and find the best path forward for people and teams, throughout his career. These skills are critical in a mediation setting. Coupled with Michael’s own experience in a litigated divorce, he is driven to help divorcing couples navigate their divorce in the healthiest way possible. Michael is the founder of Michael’s Mediation, which serves divorcing couples across the U.S. He is a graduate of the University of Illinois with a divorce mediation certification from Northwestern University. Michael is a loving father of three and lives in the Northern Suburbs of Chicago. Learn more here.