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Should I Use My Divorce Attorney as a Litigator or a Mediator?

Posted by Jason C. Tuchman | Feb 23, 2024

Divorce is undoubtedly one of the most challenging experiences a person can face. As you navigate the complexities of dissolving your marriage, one crucial decision you'll need to make is whether to use your divorce attorney as a litigator or a mediator. Each approach offers advantages and considerations, and understanding the differences can help you make the right choice. Let's explore the factors to consider when deciding between a litigator and a mediator.

The Role of a Divorce Litigator:

A divorce litigator is a legal professional representing clients in court proceedings to resolve disputes related to their divorce. Here are some critical aspects of working with a litigator:

·    Advocate in Court: A litigator serves as your advocate in the courtroom, presenting your case before a judge and advocating for your interests on issues such as asset division, child custody, and spousal support.

·    Navigates Legal Procedures: Your litigator will guide you through the formal litigation procedures, including filing motions, responding to legal documents, and representing you in hearings and trials.

·    Pursues Legal Remedies: Litigators seek to achieve favorable client outcomes through court judgments or negotiated settlements, leveraging their expertise to pursue the most advantageous legal remedies.

The Role of a Divorce Mediator:

A divorce mediator is a neutral third party who facilitates communication and negotiation between divorcing spouses to reach mutually acceptable agreements. Here's what to expect when working with a mediator:

·    Neutral Facilitator: A mediator acts as a neutral facilitator, helping you and your spouse engage in productive dialogue, explore options, and craft agreements on issues such as property division, child custody, and support.

·    Promotes Collaboration: Mediation emphasizes collaboration and cooperation, encouraging parties to work together to find solutions that meet their needs and interests while preserving relationships to the extent possible.

·    Encourages Win-Win Outcomes: The goal of mediation is to achieve win-win outcomes that address the concerns of both parties, promoting understanding and compromise in a less adversarial environment than litigation.

Factors to Consider:

1.    Level of Conflict: Assess the level of conflict between you and your spouse. Litigation may be necessary if the divorce is highly contentious and disputes are likely to end in court. However, suppose you can communicate reasonably well and are open to negotiation. In that case, mediation may offer a less adversarial path to resolution.

2.    Desired Outcome: Consider your desired outcome for the divorce. Litigation may be necessary if you need legal rulings on complex issues or are concerned about enforcing agreements. On the other hand, if you value control over the outcome and want to actively participate in crafting solutions, mediation may be preferable.

3.    Cost and Time: Compare litigation versus mediation's cost and time implications. Litigation can be more expensive and time-consuming due to legal fees, court appearances, and procedural delays. Mediation is often faster and more cost-effective, saving time and money.

4.    Willingness to Collaborate: Evaluate your willingness and ability to collaborate with your spouse. Suppose you can work together constructively to find solutions. In that case, mediation may offer a more amicable and efficient way to resolve your divorce issues. However, if communication is strained or there is a power imbalance, litigation may be necessary to protect your interests.


Deciding whether to use your divorce attorney as a litigator or a mediator is a significant decision that requires careful consideration of your unique circumstances and priorities. Whether you choose litigation or mediation, the most important thing is to select the approach that aligns with your goals, values, and the level of conflict in your divorce. Consulting with your attorney can provide valuable guidance in deciding and navigating the divorce process confidently and clearly.

About the Author

Jason C. Tuchman

Jason C. Tuchman is a Member of the firm who specializes in assisting families with divorce and family law matters.

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