When contemplating divorce, it's important to understand the different ways you can go about resolving any settlement disputes. Mediation, arbitration, and litigation are all options, each with its own advantages and disadvantages.
What is divorce mediation?
Divorce mediation is a process where both parties in the divorce meet with a mediator. The mediator is a neutral third party tasked with facilitating communication between the two parties.
A divorce mediator does not make any marital settlement decisions for the couple. Rather, they help the couple come to an agreement on their own. This agreement is then put into writing and legally binding.
One of the benefits of mediation is that it allows both parties to have some control over the outcome of the divorce. It also tends to cost less and move faster than a drawn-out court process. However, both parties must be willing to cooperate and communicate with each other.
What is divorce arbitration?
Divorce arbitration is similar to mediation in that it also involves a neutral third party. However, the arbitrator has the authority to make decisions about the divorce, and these decisions are legally binding. Arbitration can be less expensive and quicker than going to court, but each spouse must give up some control to the arbitrator. Typically arbitration is for spouses who were unable to resolve a conflict via mediation but still want to stay out of court.
What is divorce litigation?
Divorce litigation involves both parties taking their case to court and allowing a judge to make decisions about their settlement. This is often seen as a last resort because it can be so expensive and time-consuming.
It's important to note that once you go to court, you give up complete control over the outcome of your divorce, as it will be up to the judge to decide how things shake out.
How mediation works
Let’s explore how mediation works. The first step in mediation is for the mediator to meet with each spouse separately. This helps the mediator understand each person's side of the story.
Then, the mediator brings the couple together and talks through their issues. The mediator may help them brainstorm solutions or offer suggestions, but ultimately, it is up to the couple to decide what to do.
Consider Jeff and Karen. They’ve been married for 10 years and have issues effectively communicating with one another. They’re both looking to end the marriage but are unable to speak amicably.
They agree to hire a mediator, who meets with each of them individually to discuss their divorce priorities. After the individual meetings, the mediator brings Jeff and Karen into the same room and highlights their commonalities. Through this approach, the mediator initiates a conversation where Jeff and Karen can discuss how to split their marital property objectively and without animosity.
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How arbitration works
Let’s continue with Jeff and Karen, but this time, let’s see how things play out through arbitration. Jeff and Karen each have valid points they want the other to hear, especially those related to their two young children.
The arbitrator helps each person understand the other's perspective and find common ground. After a few sessions, Jeff and Karen reach an agreement on joint custody of their children and how their property will be divided.
Without arbitration, Jeff and Karen might have ended up in court, which would have been more expensive and time-consuming. It also would have been more challenging with their work schedules and childcare arrangements. Arbitration allowed them to work through their issues in a confidential setting without airing their “dirty laundry” in public.
How litigation works
If Jeff and Karen can’t agree on any or all of their divorce terms in mediation or arbitration, they’ll head to court.
Because litigation adds extra stress and cost to a divorce, the standard goal is to avoid it as much as possible. But since Jeff and Karen simply cannot agree on terms, a judge will decide for them.
In litigation, each spouse must present their case for why the judge should agree with their request for marital property distribution. That said, courts are required to follow specific guidelines, so neither Jeff nor Karen may get exactly what they want.
How Hello Divorce helps spouses resolve divorce conflicts
Hello Divorce offers compassionate support and guidance to divorcing couples. Whether your divorce is an idea in your head, at the mediation or arbitration stage, or heading toward litigation, consider our platform, and take 15 minutes to learn from one of our account coordinators what we can do for you. You can schedule your free introductory phone call here.
FAQs
What’s the core difference between mediation, arbitration, and litigation?
Mediation is a guided negotiation where a neutral helps you reach your own agreement. Arbitration is private decision-making where a neutral arbitrator hears both sides and issues a binding ruling. Litigation happens in court and a judge decides unresolved issues.
When is mediation a good fit?
Mediation is a strong option when both spouses can communicate enough to negotiate, want more control over outcomes, and prefer a private, lower-conflict process.
When might arbitration make more sense?
Arbitration can work well if you need a faster, private, and final decision on sticking points after attempts to negotiate, but want to avoid a public trial.
When is litigation necessary?
Litigation may be necessary when there are safety concerns, urgent court orders are needed, one party won’t participate in good faith, or there are complex legal questions a judge must decide.
Do we still need lawyers in mediation or arbitration?
Lawyers can be involved in any path. Many people consult a lawyer for strategy and document review during mediation or arbitration, even if the lawyer doesn’t attend every session.
Are outcomes private?
Mediation and arbitration are generally private processes. Litigation occurs in court and filings or hearings may be part of the public record, depending on local rules.
HowTo
Clarify goals and constraints
Write down what matters most—speed, privacy, cost, control over outcomes, and co-parenting dynamics. Note any safety concerns or urgent needs.
Assess communication and conflict level
If you can negotiate with support from a neutral, mediation fits. If you’re stuck but want a private, final decision, consider arbitration. If cooperation is unlikely or court orders are needed, litigation may be appropriate.
Map the issues and complexity
List property, support, and parenting topics. The more complex or technical the questions, the more you may want legal guidance in any process.
Compare timelines, cost, and privacy
Estimate how quickly you need resolution and how much structure you want. Mediation and arbitration are typically more private; court is more formal and may be public.
Decide on professional support
Choose whether to include lawyers, financial experts, or child specialists. Independent legal advice is useful even in a cooperative process.
Choose your path and set next steps
If mediation: schedule a consult and prepare disclosures. If arbitration: agree on an arbitrator and scope. If litigation: discuss strategy and filings with your attorney.
Document and finalize
Turn agreements or decisions into a written settlement or order and follow your court’s filing steps to make it official.
