Choosing Between Mediation vs Litigation vs Collaborative Divorce

By Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsDivorce is never easy, no matter how amicable it is. There are numerous assets and properties that need to be divided, not to mention custody of children and other aspects. In California, a person that files for divorce has 3 ways to proceed – mediation, litigation and a collaborative divorce. There is no universal best choice among the 3 and each method is suitable for certain circumstances.


Mediation is the process where a divorcing couple sits with an impartial and neutral mediator to decide on the division of assets and properties. While both parties have to hire their own lawyers before a settlement is agreed, the mediator does not have to be a lawyer. Mediation allows for spouses to split rather peacefully and consequently benefit the children. Cost is reduced along with complete confidentiality of all matters discussed. Mediation is best for amicable divorces where the spouses aim to remain in touch and maintain a good relationship.


Litigation is the most common and oldest divorce format used. This is because in over 80% of divorce cases, the decision is made by one of the parties and is not mutual. In this case, mediation and collaborative divorce might not work as both parties are working against each other. Despite common believes, litigation often ends with an out-of-court settlement. The couple works with lawyers to come to an agreement regarding custody, division of assets, along with alimony payments and liabilities. Once a settlement is formed both parties sign it and a judge also signs off on it.

If a litigated divorce does go to court, all final decisions are made by the judge including decisions regarding assets and custody. It is recommended in most cases to keep the divorce out of the court as it could have a negative impact on the children and lead to more animosity among the parties. Litigation is the most public and the slowest of all 3 options.

Collaborative Divorce

In a collaborative divorce, the decision to get a divorce is often mutual and there is no animosity. Both parties hire an attorney and decide on the terms of the divorce. Unlike litigation, the attorneys in a collaborative divorce try to help couples come to a mutual agreement. Collaborative divorcees can also hire financial planners that will help plan their lives through the divorce and after. Therapists and coaches may also sit with the spouses to helps them resolve issues. In a collaborative divorce, there is no chance of going to court. In fact, documents are signed before the proceedings stating that the attorneys must withdraw if court is threatened or the settlement fails.

Both mediation and collaborative divorce are only recommended when both parties are on equal footing and have a mutual understanding. Spouses that doubt their partner’s declarations or do not understand the various assets on hand (such as finances) should choose litigation. The same applies when substance abuse, physical or mental abuse is involved.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation