Divorce

Litigation or Mediation

Between 40 and 50% of today's marriages end in
divorce according to The State of Our Unions 2009,
a report by the National Marriage Project of the
University of Virginia. For many couples, divorce
becomes traumatic and financially devastating when they
engage in an adversarial process of litigation. In this
process, each spouse retains an attorney in the mis-
taken belief of gaining an advantage over the other.

As Judge James W. Stewart, former judge of the Santa Clara County Superior Court, counsels in Divorce Handbook for California (Impact Publishers, 2002): “Realistically, you cannot gain a significant advantage in litigation by hiring a more skillful attorney.” Judge Stewart adds, “Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge — short of a miracle; if it does, it will be a financial catastrophe for you.”

Steeped in trauma and financial devastation, adversarial divorces attract most of the attention. These are the divorces that keep judges busy, that incite domestic disturbance calls to the police, and that motivate public pressure groups to lobby politicians for changes in divorce law. However, the greater number of divorces are non-adversarial. They proceed quietly. They are neither traumatic nor financially devastating.

People reject adversarial divorce in favor of divorce mediation for several reasons. Many have heard, perhaps from family and friends, that a litigated divorce takes forever, destroys relationships, brings misery to children, humiliates both spouses, and rarely produces a settlement that either party thinks fair. Others resent the needless financial sacrifice, which averages $45,000 per spouse in California.