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Litigation. Collaborative Law. Mediation.

Litigation vs. Mediation: Different Process Choices with Similar Goals

Litigation vs. Mediation: Different Process Choices with Similar Goals


Two Sides of the Coin is a series of articles written by Ian Steinberg, a matrimonial and family law attorney, in conjunction with an array of other professionals from different industries. The series provides insights into issues from the perspective of each party to a divorce. Each article provides readers with practice tips that are helpful when navigating through the divorce process.

Although common perception is that divorce is a battle, that certainly does not have to be the case. In fact, there are a number of different process choices that a separating couple can choose that emphasize collaboration. There are many reasons to keep a divorce out of the court room, including the emotional costs to the couple and their children and the financial costs of litigation, to name a few.

Even the New York State court system has recognized the advantages of mediation with the advent of its Presumptive Mediation Panel in New York City and the surrounding areas. With this new program, it is quite likely that a party to a divorce who files their case in court, will end up in front of an independent, trained mediator.

If you find yourself in mediation, whether by choice or by order of the court, your ultimate goals will most likely remain similar to what they were before. However, does entering the mediation process require a different approach? Does that approach change if you are the monied spouse or the non-monied spouse? What if you are the likely custodial parent or the parent more likely to have weekend access?

Here we explain why your approach to mediation and litigation may be more similar than you realize.

Know the Cost of Making Arguments

In both mediation and litigation, it is important to know the cost of making certain arguments. In litigation, quite often parties believe there is a “winner” and a “loser,” but attorneys will tell you in most cases, that is not true. Yes, there is the hope of getting what you “want” in litigation, but what is often overlooked until the litigant is too far along in the process, is the financial cost of waging that war. Litigation is expensive and the counsel fees alone for each of the parties can be tremendous – to say nothing of the costs associated with financial experts, attorneys for the children and forensic evaluations. This is especially important to keep in mind if you are the monied spouse, as oftentimes you are obligated to pay a large portion of counsel fees on behalf of the non-monied spouse in order to “level the playing field.” At the same time, the non-monied spouse should also be weary as the court may order that counsel fees be paid from marital funds, thus reducing the amount both parties will receive at the end of the case. In those contentious financial cases or custody cases where litigation cannot be avoided, it is imperative that you keep the cost in mind and avoid spending more in counsel fees than the value actually in dispute.

In mediation, you want to keep the same considerations in the forefront of your mind. The most important thing to remember is that you cannot win a mediation, but you can lose one by missing an opportunity to reach a settlement or by making a settlement more difficult. Remember that your spouse or co-parent is hearing you speak so you should try to appeal to him or her in a way that will be impactful. Keep in mind the reasons you entered into mediation and the benefit you hope to derive from the process. Maybe it is because you wanted to make sure that your children were not negatively impacted by the process or to maintain a strong post-divorce relationship with your soon to be ex. Either way, keeping in mind the cost of making certain arguments will make the process more meaningful and productive.

Know Your Best-Case and Worst-Case Scenario and Know the Middle Ground

If you are going through the litigation process and you do not reach a resolution, you will eventually end up going through a full trial, which will culminate in the Judge deciding your case based upon the law. This means that you cannot determine your own outcome and chart your own course. Therefore, it is important to be prepared and know your best-case and worst-case scenario and the likelihood of the decision coming out in your favor. If there are various points of contention, such as equitable distribution of assets, claims of separate property, and arguments for decision making in a custody case, you should be aware of your likelihood of a favorable outcome on each issue. Further, you will want to know the strengths and weaknesses of the other side’s positions. Strategically, as compared to mediation, you may not want to “pick your battles” but instead make every argument you can and hope for the best as decisions are rarely made by the court piecemeal. This holds true during litigation whether you are the monied-spouse or the non-monied spouse.

On the other hand, during a mediation, reaching a settlement requires each party to give up something and meet in the middle. Each party should feel like they compromised so it is important to be prepared to give something up. Prior to the mediation, make sure you know what is most important to you and what you are willing to let go of. You are best able to make those decisions by knowing your best and worst-case scenarios and thinking about where your arguments are strong and where they are weak. Know what is most important to the other side and find a way to give it to them, in whole or in part. We know how strange that sounds: Why would you give the other side what they want? But think for a moment, what is the purpose in offering something to the other side that you know they do not want or do not need? That will not move your case forward.

By way of example, if while negotiating a parenting schedule you are asking to have the children spend the majority of school nights in your home, you should consider offering additional time during the summer or on long holiday weekends to your spouse. Similarly, if you are the non-monied spouse and need your spouse to continue co-owning the marital home for a period of time after the divorce, you should think about offering something in exchange for that concession. To reach a settlement or make a proposal that will eventually result in a settlement, you need to offer something that your spouse or co-parent can say yes to, or at least will not say no to entirely and that encourages further negotiations.

Really Listen

While it might seem like simple advice, listening is one of the most important, and most often forgotten, skills. Throughout the litigation process, it is common for the presiding Judge to weigh in either directly to the parties or though counsel, to give his or her “take” on the case. While the Judge may not have all the evidence before him or her, they have a lot of experience and can give the litigants a good idea as to the likely outcome at trial. Listen to what the Judge is saying about your arguments. Most importantly, listen to your attorney’s assessment of your case. If you are asking for something you can never win at trial, you are fighting a losing battle. What is worse, in doing so you may discredit yourself when making other arguments where you have a greater likelihood of success. If you are the non-monied spouse and hear the Judge say numerous times that this is “not a spousal maintenance case” there is generally no reason to fight that issue when you can instead fight for a greater amount of child support (if you are also the custodial parent or the lower income earner with an equal parenting time schedule).

If you are mediating your case listening is just as important. Listen when the other party or the mediator is talking. Really think about what is being said and why. Mediation is your chance to talk about the “why” of what you want. Do not spend time blaming or recounting grievances of the past as this is your opportunity to move your case forward in a productive manner. It is important to remember that sometimes it is okay to agree to disagree. Mediation is not the forum to persuade your spouse or co-parent that you are “right” or they are “wrong.” That epiphany is not necessary to reach a settlement. Quite often the reason why couples are getting divorced is because they see things differently and that may or may not ever change. What you can do is find a way to work together moving forward and avoid the traps of the past.

The same fundamental principles apply whether you are going through the litigation or mediation process. Following the suggestions above will hopefully lead to a better outcome for you and your family, no matter which side of the coin you fall on.

Ian Steinberg is a matrimonial and family law attorney with Berkman Bottger Newman & Schein. He can be reached by email at or by phone at (212) 867-9123.

Jessica L. Toelstedt is a matrimonial and family law attorney with Berkman Bottger Newman & Schein. She is the co-chair of the firm’s Mediation and Collaborative Law Practice. She can be reached by email at or by phone at (212) 867-9123.