Everyone tells you mediation is better. Cheaper. Faster. More civilized. And sometimes that's true. But sometimes mediation is a waste of time and money that just delays the inevitable court battle.
The right path depends on your specific situation—your relationship with your ex, how complicated your finances are, whether there are children, and honestly, whether you can both act like adults for a few months.
Here's what each path actually looks like.
The Quick Comparison
Mediation: $3,000-$7,000 total, 2-4 months, works when both people negotiate in good faith
Collaborative divorce: $10,000-$30,000 per person, 4-8 months, each person has a lawyer but commits to settling
Litigation: $15,000-$50,000+ per person, 1-3 years, necessary when someone won't negotiate fairly
What Is Mediation?
Mediation is a process where you and your spouse sit down with a neutral third party (the mediator) to negotiate your divorce terms. The mediator doesn't decide anything—they help you reach your own agreement.
A mediator will:
- Facilitate discussion on all issues (property, support, custody)
- Help identify common ground
- Provide information about how courts typically handle issues
- Draft a memorandum of understanding when you reach agreement
A mediator won't:
- Give legal advice to either party
- Tell you what to do
- Make decisions for you
- Represent either person's interests
How Mediation Works
The Typical Mediation Process
- Initial consultation: Mediator meets with both of you (together or separately) to explain the process and assess whether mediation is appropriate.
- Information gathering: Both parties provide financial disclosure—income, assets, debts. Same documents you'd need for court.
- Negotiation sessions: 3-8 sessions, typically 2-3 hours each. Work through issues one by one.
- Memorandum of understanding: When you agree on everything, the mediator drafts a summary of terms.
- Independent legal advice: Each person takes the memorandum to their own lawyer for review.
- Separation agreement: A lawyer drafts the formal agreement based on your mediated terms.
What Mediation Costs
Mediators in Ontario typically charge $250-$500 per hour. Most divorces need 10-20 hours of mediation time.
Total mediation cost: $3,000-$7,000 (split between both parties)
But you're not done there. You'll also need:
- Independent Legal Advice: $1,000-$2,500 per person for a lawyer to review your agreement
- Separation agreement drafting: $1,500-$3,000 (sometimes included in ILA)
All-in cost for mediated divorce: $7,000-$15,000 total for both parties combined.
What Is Litigation?
Litigation means going to court. Each person hires their own lawyer. If you can't agree, a judge decides for you.
Most litigated divorces don't actually go to trial. About 95% settle before a judge makes a final decision. But the process of litigation—the motions, the discoveries, the conferences—is what costs money and takes time.
How Litigation Works
The Litigation Process (Simplified)
- Application: One spouse contracts a lawyer who files an application to start the process.
- Response: The other spouse files their response (30 days).
- Financial disclosure: Both sides exchange financial statements and documents pertaining to income and property, along with questions and clarifications.
- Negotiation: You and your lawyer go back and forth with your spouse's lawyer, and try to come to some sort of agreement. You want to avoid going to court, not only is it very expensive, once the court is involved, you have a judge dictating terms that may not be in your favour. Lawyers try to get to an agreement first, before suggesting court appearances. Many divorces are settled out of court this way.
- Case conference: If there is no leeway and the other side is not interested in negotiating a settlement, then the first court appearance is made and the judge tries to narrow issues and encourage settlement.
- Settlement conference: More focused attempt at settlement with a judge's input. The judge makes strong settlement recommendations.
- Trial management conference: If still not settled, prepare for trial.
- Trial: Present evidence, call witnesses, judge makes binding decisions.
Most cases settle somewhere between steps 4-6. Very few actually get to trial.
What Litigation Costs
Family lawyers in Ontario charge $300-$600+ per hour. A "simple" contested divorce might involve 50-100+ hours of lawyer time. Complex cases can involve 200+ hours.
Typical litigation costs:
- Simple contested divorce: $15,000-$30,000 per person
- Moderate complexity: $30,000-$50,000 per person
- High conflict or complex assets: $50,000-$100,000+ per person
- Full trial: Add $20,000-$50,000+ for trial preparation and attendance
That's per person. Double it for the total family cost of fighting in court.
Head-to-Head Comparison
| Factor | Mediation | Litigation |
|---|---|---|
| Cost (total, both parties) | $7,000-$15,000 | $30,000-$100,000+ |
| Timeline | 2-4 months | 1-3 years |
| Who decides? | You and your spouse | A judge (if you can't settle) |
| Flexibility | High—creative solutions possible | Low—judge applies the law |
| Privacy | Confidential | Court records are public |
| Relationship impact | Can preserve co-parenting relationship | Often damages relationship further |
| Control | You control the outcome | Judge controls the outcome |
| Legal advice during? | Not from mediator (get ILA separately) | Your lawyer advises throughout |
| Works when... | Both parties negotiate in good faith | One party won't negotiate fairly |
When Mediation Works
Mediation is a good fit when:
- You can both communicate reasonably. You don't have to like each other. You just need to sit in a room and have an adult conversation.
- There's no major power imbalance. Both parties can advocate for themselves without being intimidated or controlled.
- You're both willing to disclose. Mediation requires honest financial disclosure. If one person is hiding assets, mediation won't uncover that.
- You want to preserve the co-parenting relationship. If you have kids, you'll be dealing with each other for years. Mediation is less damaging than warfare.
- You value control over the outcome. In mediation, you decide. In court, a judge who spent an hour learning about your life decides.
Good Mediation Candidate
Sarah and Mike are divorcing after 15 years. They have two kids and want to co-parent effectively. Both work and have similar incomes. They own a house and have retirement savings. They disagree on some things but can discuss them without screaming.
Why mediation fits: Relatively straightforward finances, shared interest in co-parenting, ability to communicate. They can probably work out a fair arrangement with a mediator's help.
When Mediation Fails
Mediation is NOT a good fit when:
- There's domestic abuse. Abuse creates a power imbalance that makes fair negotiation impossible. Victims often agree to bad terms just to end the interaction.
- One person is a bully. Some people can't negotiate—they only dominate. Mediation rewards bad behavior in these cases.
- One person won't disclose. If your spouse is hiding income or assets, mediation won't find them. You need the discovery tools that litigation provides.
- One person won't compromise. Mediation requires both parties to move from their positions. If one person's idea of "negotiation" is "give me everything," you're wasting time.
- There's a fundamental legal dispute. If you disagree about whether something is even legally divisible (like an inheritance or business value), you might need a judge to rule on the law.
Poor Mediation Candidate
Jennifer wants to leave Tom. During the marriage, Tom controlled all the money, made all decisions, and belittled her constantly. She doesn't know what they own because he never told her. When she tries to discuss divorce, he tells her she'll "get nothing" and she's "too stupid to handle money anyway."
Why mediation doesn't fit: History of financial control and emotional abuse, possible hidden assets, no ability to negotiate as equals. Jennifer needs a lawyer and the discovery process to find out what exists and protect her rights.
The Hybrid Options
It's not just mediation OR litigation. There are middle paths.
Collaborative Divorce
In collaborative divorce, each spouse hires their own collaboratively-trained lawyer. Then all four of you (both spouses, both lawyers) meet together to negotiate.
The key difference: everyone signs an agreement that if collaboration fails, both lawyers must withdraw. Neither lawyer can represent you in litigation. This creates strong incentive for everyone to make it work.
Pros:
- You have legal advice throughout (unlike mediation)
- Strong incentive to settle
- More structured than mediation
- Can bring in other professionals (financial experts, child specialists)
Cons:
- More expensive than mediation ($10,000-$30,000 per person)
- If it fails, you've paid for lawyers you can't use in court
- Requires finding collaboratively-trained lawyers
Med-Arb (Mediation-Arbitration)
Start with mediation. If you can't agree on everything, the mediator switches hats and becomes an arbitrator who decides the remaining issues.
Pros:
- Guaranteed resolution—someone will decide if you can't
- Faster than going to court if mediation fails
- Same person handles everything
Cons:
- Might be less candid in mediation knowing this person could decide later
- Arbitrator fees can be high
Lawyer-Assisted Mediation
Regular mediation, but each person brings their lawyer to sessions (or has their lawyer on call).
Pros:
- Get legal advice in real-time
- Lawyer can catch problems immediately
- Combines benefits of both approaches
Cons:
- More expensive than basic mediation
- Can slow things down
Negotiate, Then Litigate (If Needed)
Try mediation or direct negotiation first. If it fails, go to court. Most people end up here anyway—trying to settle before resorting to litigation.
There's nothing wrong with this. You tried the cheaper path. It didn't work. Now you use the tools you need.
What About Arbitration?
Arbitration is like a private court. You hire an arbitrator (often a retired judge or experienced family lawyer) to decide your case.
Why choose arbitration?
- Faster: You schedule when the arbitrator is available, not when the court has room
- More control: You choose the arbitrator and can pick someone with specific expertise
- Private: No public court records
Why not?
- Cost: You pay the arbitrator's fees ($400-$700/hour) on top of your lawyers
- Limited appeals: Harder to appeal an arbitration decision than a court judgment
Arbitration makes sense for complex cases where court delays would be painful, or where you want a decision-maker with specific expertise (like valuing a business).
How to Decide
Ask yourself these questions:
1. Can we communicate?
If you can sit in a room and have a difficult conversation without it devolving into chaos → mediation is worth trying.
2. Is there a power imbalance?
If one person has historically controlled decisions, money, or the other person → you probably need lawyers involved.
3. Are there hidden assets or complex finances?
If you don't trust the financial disclosure or there's a business involved → litigation's discovery process may be necessary.
4. What can we afford?
If your combined assets are under $100,000, spending $80,000 on litigation is insane. Find a way to settle.
5. Do we have kids?
You'll be co-parenting for years. How you divorce affects that relationship. Mediation is usually less damaging.
Run the Numbers First
Before choosing a path, know what you're working with. Use our calculators to understand the likely range of support and property division. When both parties know what a "fair" outcome looks like, settlement becomes easier.
Going into mediation (or negotiation, or court) without knowing the numbers is like negotiating a salary without knowing the market rate. Do your homework.
Frequently Asked Questions
How much does divorce mediation cost in Ontario?
Mediation typically costs $3,000 to $7,000 total for both parties combined, depending on complexity and number of sessions needed. Mediators charge $250-$500 per hour, and most divorces require 3-8 sessions. Compare this to litigation, which averages $15,000-$50,000+ per person. You'll still need a lawyer to review any mediated agreement, which adds $1,000-$2,500.
Is mediation legally binding in Ontario?
The mediation process itself isn't binding—you can walk away at any time. However, once you reach an agreement in mediation, it gets drafted into a separation agreement, which IS legally binding when properly executed. The agreement can also be filed with the court to make it enforceable as a court order.
Can I use mediation if my spouse is difficult or controlling?
Maybe not. Mediation requires both parties to negotiate in good faith with relatively equal bargaining power. If there's a history of domestic abuse, financial control, intimidation, or one spouse who simply won't compromise, mediation often fails or produces unfair results. A good mediator will screen for these issues and may decline to proceed.
Do I need a lawyer if I'm using mediation?
You don't need a lawyer during mediation sessions, but you should have one review any agreement before you sign. This is called "Independent Legal Advice" (ILA). A lawyer can spot issues the mediator missed or terms that disadvantage you. ILA typically costs $1,000-$2,500 and is money well spent.
How long does mediation take compared to going to court?
Mediation typically resolves in 2-4 months (3-8 sessions spread over weeks). Litigation takes 1-3 years on average, sometimes longer. However, mediation only works if both parties participate. If one person refuses or mediation fails, you're back to litigation anyway, having lost time.
What is collaborative divorce and how is it different from mediation?
In collaborative divorce, each spouse has their own collaboratively-trained lawyer, and everyone meets together to negotiate. If collaboration fails, both lawyers must withdraw—you can't use them for litigation. This creates strong incentive to settle. It costs more than mediation ($10,000-$30,000 per person) but less than litigation, and you have legal advice throughout.
Related Articles
- How to Prepare for Divorce — Document checklists and what to do first
- Property Division vs Spousal Support — Understanding both systems
- Strategic Moves Before Filing — Timing and preparation
- Spousal Support Enforcement — What happens if they don't pay