Litigation vs. Mediation – "Child’s Play" for Understanding Your Options

by Jennifer Winestone

Parents are more familiar with the mediation process than they may realize. In fact, parents often mediate disputes between their children - they just don't know that is what they are doing. On the other hand, litigation - the default process in family proceedings - is more foreign in concept, as it relates to family dynamics. The following hypothetical is designed to illustrate the difference between litigation and mediation by applying both processes to a common parenting scenario.

The Dispute: What's Yours is Yours vs. What's Yours is Mine

Jake and Emily are siblings. Jake is 8 years old and Emily is 6 years old. They are fighting over a toy plane that Emily got for her 6th birthday last week. Jake had a similar toy plane but Emily broke it last week while playing a game of Flying Princesses with her friends. Unable to resolve the issue, the children look to you for guidance.

Litigation: Win or Lose - You Decide

You tell the children they will each get a chance to explain why they should have the toy and the other should not.

Jake calls up Taylor and asks her to help represent him. Taylor is in the 5th grade and class representative. She is a tough negotiator and successfully campaigned for a class trip to the chocolate factory in the Spring.

Emily retains Matt, her best frenemy. Matt is prone to bullying behaviors, but is a loyal supporter of younger siblings against tyrannical big brothers and sisters (Matt's big brother Billy is in Middle School).

Taylor and Matt take turns pleading Jake and Emily's respective cases. Taylor tells you of Emily's selfish character and irresponsible behaviors that led to the breaking of the first toy plane. She notes Emily's complete lack of remorse or attempt at retribution. Emily is hurt by the insults and turns her chair away from Jake.

Matt fashions a paper plane out of some newspaper from the recycling bin, throws it on the ground, then serendipitously stumbles over it, crushing the fragile flyer, before launching into a diatribe about harsh punishments for innocent acts of clumsiness. Emily bats her eyelashes and flashes an innocent smile. Jake rolls his eyes and mutters something about fairness and favoritism.

After hearing from each side, you render your decision and the toy is claimed by its declared rightful owner. Whatever your decision, one of your children will lose the toy. Both children will lose a valued playmate, and will be left with hurt feelings resulting from the other's personal criticisms and attacks. When they play together again, it will be with a hesitant distrust of the other's intentions.

Mediation: Facilitated Negotiation - They Decide

You tell the children that the choice is theirs, but that you will help them figure out a solution that they can both live with. You give them each a chance to state their perspectives - why they each want the toy plane and what their intentions are in respect of it.

You find out that Jake had wanted to bring the toy to his history class the next day - Mr. Stern is giving a lesson on the Wright Brothers. You also discover that Emily has invited her friend Mason over for a playdate after school tomorrow and had bragged to him about her cool new airplane. Jake opens up about Emily's apparent lack of concern for his playthings and lack of respect for his privacy (she had apparently taken the first plane out of his room without asking). Emily apologizes for not asking Jake's permission before playing with his toy, but explains that she was holding it quite gently when the right wing fell off in her hand. She reminds him that he has, on occasion, acted without her permission as well.

With your help, the children generate a range of solutions and eventually settle on one that seems to accommodate both their needs. The children are empowered by their self-generated resolution and head off to play with some Legos.

Overly Simplistic Simplification - Guilty!

Of course the scenarios above are overly simplistic and do not present a complete picture. In reality, there are times when a parent must make a decision in respect of their children's disputes. Similarly, there are family cases - or particular issues in a case - that may best be resolved in court by a judge. However, in the vast majority of cases, mediation is a preferred method of dispute resolution.

Separation is a difficult process. When parties have children, they will likely have a meaningful existence in each other's lives for the rest of their lives - as parents, grandparents, great-grandparents - despite their decision to separate. Mediation can help by empowering individuals with authorship of their own destinies, creating a safe space for disagreement, and charting the course for mutual agreement and future cooperation.


Jennifer Winestone is an attorney from Toronto, Canada, with a background in family law, estates and civil litigation. She is admitted to the State Bar of California and is practicing in the Los Angeles area. She has recently relocated to California, where she received her LL.M. in Dispute Resolution at the Straus Institute for Dispute Resolution at Pepperdine University. Jennifer believes in an evolving litigation process and strives to be part of positive changes in the future of dispute resolution.