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Divorcing? Mediate or Litigate?


When spouses call me these days they are usually looking for direction. They have decided to divorce, and have googled and researched everything about divorce, but they are not sure what to do. They have read about going to court, negotiation and mediation. Many of them are confused and not sure what will work best for their family.

When considering divorce most spouses are usually familiar with going to court and fighting. But more and more clients are learning there are more peaceful and less expensive options, and they are choosing them.

As a divorce attorney and medically-trained mediator for over 35 years, I hear during consultations spouses asking more, and more about the difference between “litigation” and “mediation”.

Many spouses still just want to fight. They don’t know any other way. They only see “red” and nothing is going to change that or their approach. But for those open to a non-adversarial option, there is a more positive, productive and peaceful solution – it’s mediation.

Both paths, litigation and mediation will lead to a divorce, but how you get will be very different!

Let me tell you about Litigation and mediation.


Under the traditional system, imported from England originally, couples went to court to obtain a divorce.

Each spouse hires his or her own "advocate," and they engage in what is normally an adversarial process. The steps can include negotiation between the attorneys. If or when this is not working, there is always the threat of
"going to court," where a judge will make decisions about all the issues, including custody and visitation, child support, spousal support, and the division of property.

The court process is particularly daunting. It includes serving a summons and complaint, an answer, and exchanging financial information and documents. This exchange is called "discovery," and it is, in fact, a way to find out the facts about the parties' finances. It can include subpoenas served on banks, businesses, and third parties. It may also include applications made to the court for various types of relief, such as temporary child and spousal support,
interim custody, and counsel fees.

Once you get locked into the system, it is extremely hard to find your way out. It is expensive, time-consuming, and emotionally draining. Ultimately, it may be the only vehicle for warring couples of a certain ilk. In some cases I call this the vehicle used to “punish”. This path is often attractive to spouses who want revenge, enjoy conflict, and seek to maintain control over the other spouse.


This path to divorce involves working with an unbiased mediator, usually a lawyer, whose function it is to assist a couple in a peaceful process, to make decisions together at and arrive at an agreement that is fair to both. For people who have never experienced it, mediation is surprisingly and stunningly effective. It is quick, inexpensive, and not
adversarial. It is a three-part process, consisting of the negotiations, the preparation of an agreement, and preparation and submission of the divorce documents to a judge for signature.

In the last decade, mediation has become the popular choice of many divorcing couples, especially millennials. In fact, during the pandemic, while the courts have been closed, couples have been calling and asking me a lot about mediation.

It has been particularly difficult for disgruntled couples sheltering in place to continue in an already unhappy marriage. For some in abusive relationships, continuing to struggle in the marriage is no longer acceptable.

These days, since many are still working at home, I have phone consultations with spouses sitting in their cars, calling from the lobby of their building or from outside seating at their local diner for privacy from their spouse.

I am happy to guide spouses on how to safely and securely remove themselves from an unhappy marriage.

You do have options. Learn what they are, and gain the strength to leave a marriage that no longer makes you happy.

If you are thinking of divorcing and would like to discuss litigation vs. mediation, call me. We can discuss the details of your marriage and select the best option for you.

For those of you not quite ready for divorce there are other options, like a legal separation or postnuptial agreement. These avenues can be explored and are effective as well.

Call me today and we can discuss the right option for you. My consultations, which are free, are one hour, discreet, informative, and comprehensive.

All our FREE 1 HOUR CONSULTATIONS are conveniently conducted virtually to reduce risk.
We still have some appointments available for this week.

I look forward to helping you.

Stay healthy and safe!

Warm regards,

When it comes to your future and that of your family, don’t leave anything to chance. Learn about the best divorce option for you from New York Divorce Lawyer Lois M. Brenner, Esq.
Do it now! Call 212.734.1551.