Mediation: Last Resort, or First Choice?

Mediation Last Resort First Choice

A couple had  been in litigation for a little over 6 months and were running out of money. The 6 months were spent by the lawyers in discovery, producing endless bank account, credit card and loan statements, household bills, insurance premiums. etc. from the past 5 years. The lawyers felt that was a reasonable amount of time to go back and get a thorough understanding of the monthly outflow of funds and what the money was used for.

When I saw the amount of paperwork that was produced, I was astounded, because these were salaried employees. They had documented income which didn’t vary from month to month. I had them do a budget and immediately saw that their expenses and their net income were approximately the same. In other words, after expenses, they had no money left over at the end of each month. This had been going on for years, which they both acknowledged.

In my opinion, since there were no allegations of dissipation of assets, the discovery was a complete waste of time. Six months and thousands and thousands of dollars later, they were nowhere. They certainly hadn’t agreed to anything. All they wanted was their day in court to tell the judge how horrible the other spouse was.

No matter how many attorneys I speak to or how many couples I meet with, I can’t seem to convince them that coming to mediation should always be the first choice. It’s the least expensive, the least damaging and it’s your chance to see if there is any way you can work things out before you take that very long and expensive legal route.

Unfortunately, most couples turn to lawyers and litigation first. When the money has run out or the couple is totally frustrated by the legal process, they end up coming to mediation. For the mediator, the case is much more difficult, because now they are entrenched in their positions, have very little money to make choices and are weary and frustrated.

I understand that the courts use referees and settlement conferencing, but that often is a third party telling them how to settle their case. That is somebody else making the decisions, where in mediation, both spouses participate in the decision-making and discussion of how the agreement will impact both of them and their children.

Perhaps one day divorcing couples and the courts will see that mediation should be the first choice, not the last resort.


This article, written by Don Sinkov, originally appeared on