Is mediation less expensive than going to court? Yes and No. And should cost be the determining factor in deciding whether or not to use mediation? Again, Yes and No.
Is Mediation Always Less Expensive?
While mediation is often less expensive than going to court, that is not always the case. It often depends on the issues that you are fighting about. A full blown litigated divorce case which includes issues of how to split assets such as retirement accounts, real property and business assets, along with issues of custody and parenting time and child and spousal support can easily end up costing $15,000 or more by the time the court case is done. It would be rare for a full blown mediation to cost anywhere near that sum even if you are using attorneys and other professionals such as financial advisers during the mediation process. However, if you are involved in a high conflict family relationship, a good mediator will need to spend a lot of time developing a safe and effective process to assure that the parties at the table get all the information they need to make fully informed agreements and to do it a way that is safe and empowering to everyone involved in the process. More conflicted relationships require not just more face to face meetings but more case development and preparation work on the part of the mediator in between meetings and the use of impartial experts to come up with mutually agreeable values on assets and other financial matters. In such cases, the mediation process can end up costing several thousand dollars. But you need to remember that in cases where parties fight it out in court, each party is spending $15,000 or more just on his or her own attorney and experts, while the other party is spending the same amount on their own attorney and duplicative experts. In mediation, the costs are usually shared by both parties and only one set of agreed upon experts need to be consulted.
Should Cost Be The Determining Factor in Deciding on Whether or Not To Use Mediation?
Cost should definitely be ONE factor. Why dissipate all of your assets fighting about them if you have another alternative? However, each case is different and you have to weigh the pros and cons of each process as it applies to your individual situation. For instance, if there is a history of severe physical domestic abuse in your relationship, it is probably not appropriate for mediation unless you are working with a mediator who is highly skilled in evaluating you case and assuring that measures are in place to maintain safety and power balances and who can continually evaluate the situation to determine if mediation should continue. There may be other cases where going to court is more appropriate as well. A good mediator will help you evaluate the pros and cons of using mediation versus going to court, not only before you start mediation, but throughout the process.