Santa Cruz Family Law Attorney

Why to Choose Mediation over Litigation

As an attorney, one of my primary goals when helping a client is to minimize the stress and cost of their divorce. Considering alternatives such as mediation is essential if I am to meet that goal. Understanding the benefits and challenges of mediation help explain why it has increased in popularity the last few decades.

Mediation has become more common for a few reasons. The first is that most outcomes are predictable. In most cases, litigating a divorce just fuels the fighting while doing little to alter the final result. I am not saying all cases are the same, but there have been so many divorces it is unlikely yours brings up an issue the court has not seen before. There are some cases that raise such unique scenarios and genuinely need the court to intervene, but it is important to realize these are the minority of cases.

The second reason involves the courts workload. The Courts continue to be overworked and underfunded. The courts face an unending caseload. To top it off they have had their budgets cut to bare minimums. With the courts receiving less funding and still having to keep up with the same caseload, judges find themselves having to work through cases quickly. Mediation may provide a more personal and cost effective way to resolve your divorce without feeling like your just another case.

As mediation has become more commonly used for family law some benefits have become more evident. Some of the benefits of mediation may include:

  1. a more comfortable and convenient setting that the court
  2. a more personal result
  3. a more cost-effective approach

Comfort and Convenience:

The atmosphere of the court is not quite inviting. Standing in front of a room full of strangers in front a judge asking you questions can be unnerving. I am not saying mediation is easy, but sitting down in a private room with just you, your spouse and a mediator will likely be more comfortable.

In addition scheduling is much more flexible with mediation. Trying to find a court date at 8:30 am that works for you, your spouse, both attorneys and the court can slow down the process. Scheduling a session with one mediator is generally much more flexible and many mediators will go as far as scheduling sessions on weekends or evenings if necessary.

Personalized Results:

Mediation allows you to be creative and find a result that works for you and your family. The courts try hard to give everybody a fair result, but with the limited time they have they cannot understand your family as well as you. Your day to day knowledge of the people and relationships that make up your family allow you to find creative solutions that take into account your families specific needs.


Mediation tends to be much less expensive. It is important to realize that mediation does not lessen the workload. It takes the workload that your attorney and the court would be handling and shifts much of that work to you. A mediator's role in this is to help you handle this workload by providing you with the legal background you need. In addition a mediator will help you deal with formalities and paperwork of your divorce.

Along with numerous benefits mediation does have one particular challenge. Managing conversations about difficult issues between two people who probably do not like each other very much at the moment can be challenging. This is part of what a mediator brings to the table. The mediator should be able to direct discussions; limit fighting by controlling blame, accusations and insults; and make sure both spouses are heard and stay focused on the issues. These are not always easy things and require many judgment calls on the part of the mediator, but it should be little more than a bump in the road as long as both parties are motivated to reach a settlement.

Mediation may not be perfect for every case, but I do believe that it should always be considered before moving on to more hostile and expensive methods. I encourage people to look over the benefits of mediation and consider it when going through a divorce or dealing with the modification of divorce issues.

DISCLAIMER: This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options. I would love to hear what other estate planning or familily law issues you find important.

by Keith Dysart, Santa Cruz Family Law Attorney and Mediator

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