The ‘Mediation‑tion’ Effect: Does Early Mediation Reduce Litigation Costs in Cook County?

Mediation is widely touted as a cost-effective, faster, and more amicable alternative to courtroom showdowns in divorce. Proponents claim that bringing in a neutral mediator helps couples settle disputes with less expense and drama than full-blown litigation. In theory, this means fewer billable hours for combative attorneys and more control for the spouses over the outcome. It’s no wonder Illinois families hear that “mediate the situation before it escalates” is sage advice. Yet despite this glowing reputation, the actual uptake of mediation varies. Many divorcing parties (and their lawyers) still bypass mediation, opting for direct negotiation or litigation. Even in progressive Cook County, early mediation isn’t universally embraced – at least not initially. In fact, when mediation was first introduced in Cook County family courts decades ago, judges and attorneys were slow to warm to it. Back in the 1990s, mediation “was not even discussed” in local divorce cases. By 2011, the courts began expanding mediation beyond child custody issues (where it had long been mandatory) to financial disputes as well. But old habits die hard: it took years for judges to get comfortable ordering mediation in money fights without both parties’ consent. This cautious approach reflects a persistent concern – what if mediation simply adds cost and delay without delivering results? Some critics have warned that forcing mediation on unwilling litigants could “add costs and create delays in the wake of a possibly unsuccessful mediation.” In other words, why detour into mediation if you’ll end up in court anyway?

So, does early mediation actually reduce litigation costs in practice, particularly in Cook County divorces? Or can it sometimes be an added, unnecessary expense on the road to the same destination? This question matters to divorce lawyers and clients alike. After all, saving time and money sounds great – unless the “shortcut” becomes a scenic route that circles back to litigation with extra bills. Let’s dig into the data and experience from recent years to see whether mediation lives up to its promise (and for which cases it might not).

Mediation by the Numbers: Costs, Time, and Success Rates On paper, mediation’s advantages are impressive. Numerous studies and surveys show that mediated divorces tend to cost significantly less and resolve faster than litigated ones. For example, a study by the Boston Law Collaborative found mediation was by far the least expensive option: the median cost of a mediated divorce was about $6,600, versus $26,000+ for attorney-negotiated settlements and a whopping $77,000 for full-scale litigation. Closer to home, Illinois attorneys report similar trends. One recent analysis pegged the average cost of a traditional litigated divorce in Illinois at $15,000–$27,000 (and often 12–24 months of time), compared to roughly $3,000–$8,000 for mediation (over 3–6 months). In short, mediation can slash legal costs by more than half in many cases. It also resolves disputes much faster – often in a matter of a few months, whereas court battles can drag on for a year or two (or more). Fewer court hearings and quicker resolution mean fewer hours billed and less time spent living in divorce limbo.

Beyond just cost and speed, mediation boasts high success and satisfaction rates. The vast majority of mediated cases do end in a settlement. Various statistics put the settlement rate from 70% up to north of 85%. (In the U.K., about 92% of mediations result in a deal, for example.) This is a key point: mediation works most of the time, and when it works, it works well. Participants often feel more satisfied and in control of the outcome versus a judge’s ruling. One report noted over 90% of people who mediated reported high satisfaction, and compliance with mediated agreements (especially on child issues) tends to be higher than compliance with court orders. The logic is simple – when you craft your own settlement, you’re more likely to abide by it, as opposed to having terms imposed on you from above.

It’s also worth noting that very few divorce cases actually go all the way to a trial. Roughly 5% or less of divorces are decided by a judge in the courtroom; a full 95% settle out of court, either through direct negotiation or with the help of mediation. In Illinois and elsewhere, litigation is generally the last resort when all settlement attempts fail. So in theory, if most cases are destined to settle anyway, opting for mediation early could achieve that settlement sooner and with fewer zeros on the check to your lawyer. As one mediator quips, “why spend a year fighting only to negotiate on the courthouse steps the night before trial?”

Given these figures, it’s easy to see why mediation is heavily promoted as a money-saver. Even the Illinois State Bar publishes guides encouraging couples to try mediation for a “kinder, gentler” (and cheaper) divorce. Cook County judges, too, have increasingly encouraged early mediation, especially after seeing how pandemic-related backlogs made litigation timelines even longer. The presiding judges in Cook County’s Domestic Relations Division predict that mediation in family law will “continue to rise in popularity” moving forward. The data-driven case for mediation seems solid: lower costs, faster results, high success rate, happier co-parents, and more privacy to boot.

But hold on – if mediation is so fantastic, why isn’t everyone doing it in every case from Day One? This is where the story gets more nuanced. Those rosy averages don’t mean every mediation is a smashing success or the cheapest path in hindsight. As any divorce litigator will tell you (preferably over a stiff drink), “it depends.” There are important caveats and real-world pitfalls to consider before declaring mediation the universal cure for high legal bills.

When Mediation Works Best (and When It Fails) Mediation tends to work best under certain conditions: the parties are willing to communicate (however grudgingly), there’s a baseline of trust and transparency, and both sides genuinely want to settle rather than “win.” When those elements are present, a skilled mediator can guide a couple to a reasonable compromise on even thorny issues. Indeed, mediation’s sweet spot is often in moderately contested cases where emotions are running high, but outright war can still be averted with a bit of shuttle diplomacy and hand-holding. Cook County’s free court-annexed mediation for parenting disputes is a great example – many parents do settle on custody schedules through that process, sparing their kids a protracted fight. And in “average” divorces with straightforward finances, private mediation can help couples resolve property division and support with far fewer billable hours than dueling lawyers would rack up.

However, let’s talk about the cases where mediation may not be the miracle solution. Experienced attorneys know there’s a list of situations where you should think twice before mediating – or at least keep expectations realistic. ### These include

High Conflict or “War of the Roses” Scenarios: If every conversation between the spouses turns into a screaming match or one party is hell-bent on revenge, mediation can become an exercise in futility. A neutral mediator isn’t a magician; in a “scorched earth” divorce, the parties may simply refuse to compromise. In such cases, you often need the authority of a judge to impose a resolution. As one Illinois attorney put it, “if every conversation turns into a fight, a neutral mediator can’t do much. These cases need stronger court involvement.”

Domestic Violence or Intimidation: When there’s a history of abuse or a serious power imbalance, mediation is usually a bad idea. One spouse may be too afraid to speak up or may be manipulated by the other, even in a shuttle mediation setting. Illinois courts recognize this – cases with domestic violence are typically exempt from mandatory mediation requirements. As a candid assessment notes, “if one spouse feels unsafe, there’s no way to negotiate fairly. The power imbalance just ruins honest discussion.” In these situations, the court process (with attorneys and judges to provide protection and enforce fairness) is the safer route.

Hidden Assets or Dishonesty: Mediation relies on both parties being forthcoming about finances. If one spouse is hiding assets or lying about money, mediation cannot compel discovery of the truth – mediators don’t have subpoena power. You might spend months negotiating on false premises. Only litigation’s discovery tools can smoke out the hidden bank account or secret stock options. As one guide bluntly states, “Hidden assets can wreck mediation… You may need to utilize the court’s discovery process to bring everything to light.”

Legal Novelty or Principle at Stake: Sometimes a party wants a legal precedent or genuinely isn’t sure of their rights without a court’s guidance. For example, a novel legal issue or an unsettled point of law might make a litigated decision valuable. Or one spouse refuses any settlement because they want their day in court to vindicate themselves. In such instances, mediation could be a non-starter because it’s not really about the money – it’s about validation or a definitive judgment.

One-Sided Expertise or Representation: If one side has an attorney and the other doesn’t, or one spouse is far savvier about the finances, mediation can lead to skewed outcomes. The less-prepared party may agree to unfair terms. In a case with big complexities (e.g. a convoluted business to value) or an unbalanced negotiation dynamic, a mediator might not be enough to ensure fairness. Illinois actually encourages each spouse to get independent lawyer advice alongside mediation for this reason, but not everyone does. In some high-asset cases, formal litigation might be preferable to ensure full disclosure and professional advocacy.

Even when none of these red flags are present, mediation can still occasionally fail – perhaps the parties hit an impasse on one last issue, or one spouse gets cold feet about the agreement. What happens then? This is the nightmare scenario critics cite: you’ve paid for a mediation process and you end up in court anyway. Now you have two sets of bills – the mediator and the litigators – and months of effort with “nothing to show” (aside from maybe a better understanding of the other side’s positions, which is hard to put a price tag on). As one divorce litigator wryly observes, a failed mediation means “you will incur the cost of starting over… after mediation fails, the parties should seek out attorneys… who are comfortable litigating. In other words, back to square one, wallet significantly lighter. This is the scenario I call Mediation Whiplash – everyone trudges into mediation hopeful, spends a day or three trading proposals through a mediator, and leaves the table without a deal. Now the case proceeds to litigation as if the mediation never happened, except the clients are out potentially thousands in mediation fees and lost time. Ouch.

Critics of mandatory mediation point out that this double cost is not just theoretical. It’s precisely why some judges have historically been hesitant to order mediation. As noted earlier, there’s a fear of “imposing costs on the right to a trial” if mediation is forced on parties who then still have to go to trial. One can imagine a hard-fought divorce where each spouse has already paid their lawyer a hefty retainer. Introducing a “highly-paid mediator” into the mix for shuttle diplomacy can feel like hiring an expensive courier – ferrying settlement offers room-to-room that the lawyers could have exchanged via email. In cases that are very close to settling through counsel-to-counsel negotiation, paying a mediator might indeed be an unnecessary expense. And if the lawyers have a good working relationship, they might settle the case directly without a third party. (Many Chicago divorce attorneys joke that a good four-way conference – both spouses and both lawyers in a room – can sometimes accomplish more in two hours than a full day of mediated shuttle diplomacy.)

The Cook County Perspective: Litigation vs. Mediation in Practice As a divorce litigator in Chicago, I’ve seen the good, the bad, and the ugly of mediation. It’s true that Cook County’s culture has evolved to embrace mediation more in recent years. Judges like the now-retired Hon. Grace Dickler (a “longtime proponent of mediation”) actively pushed for expanded mediation programs. Today, we have court-sponsored mediation for parenting issues (free of charge) and the ability to refer financial issues to mediation by local rule. Many colleagues have jumped on the mediation bandwagon, urging clients to try settling early with a neutral’s help.

Yet, the uptake is still case-by-case. In some divorces – especially those with moderate conflict and represented by settlement-minded attorneys – mediation is practically routine. These cases often settle in a conference room at the Daley Center or via Zoom mediation long before a trial date, saving everyone time and angst. But in other divorces – say, the classic “I’ll see you in court if it’s the last thing I do” grudge match – mediation is either skipped or perfunctory. I’ve had cases where we attempted mediation solely because it was expected, only to have one spouse sit with arms crossed rejecting every proposal, effectively using the session to tell the mediator how awful the other side is. (Not surprisingly, those sessions end with no agreement except perhaps on where to order lunch.)

Statistically, since 95% of Illinois divorces settle out of court one way or another, the real question is when and how that settlement is reached. Early mediation advocates argue that settling sooner saves money – and generally they’re right. If you can settle in month 3 via mediation instead of month 18 on the courthouse steps, you’ve probably saved a bundle in legal fees and gotten on with your life. The flip side, however, is that sometimes early settlement just isn’t in the cards. Perhaps key financial documents weren’t available yet, or emotions needed to cool. In such instances, an early mediation might fail simply because the timing was premature – and ironically, the case might settle later after more litigation (and after more fees accrue). It’s a bit of a paradox: you spend more by not settling early, but you might not have been able to settle early without that additional litigation work. Some parties (and lawyers) feel they need to litigate to a certain point – exchanging discovery, seeing the other side’s cards – before a realistic settlement can occur.

From a cost perspective, Cook County courts have tried to streamline the process to avoid unnecessary expense. For example, there’s an Early Resolution Program for simpler cases, and mandatory pre-trial settlement conferences with judges for contested cases before trial. These measures often produce settlements without a formal mediation. Many divorces here settle in those judge-facilitated conferences (which cost nothing extra) or through attorney-negotiated agreements. In those instances, skipping private mediation can save the mediator’s fee entirely. Why pay a mediator $300–$500/hour if an experienced judge can nudge the parties toward agreement during a pre-trial conference as part of the normal court process? This is a pragmatic question in Cook County, where the court’s free services (mediation for kids, settlement conferences for finances) are readily available.

None of this is to say mediation is bad or that it doesn’t reduce litigation costs in many cases. It often does. But it’s also not a one-size-fits-all solution, and in a minority of cases it may actually add costs. Particularly lawyer-assisted mediations (with both attorneys attending) can get pricey, essentially turning into a mini-trial without the finality – each spouse paying their lawyer and a mediator for a day-long session, then possibly litigating afterward anyway. It’s no wonder some legal insiders privately grumble that “mediation, as a general rule, is an enormous waste of time and money” for certain clients. That view may be exaggerated, born from frustration with mandatory mediation rules, but it resonates in the tough cases where mediation simply doesn’t deliver.

The Verdict: A Witty (and Cautious) Take So, does early mediation reduce litigation costs in Cook County? Yes – in many cases it absolutely does, and the data backs that up. But not always, and that caveat is where this hot take diverges from the popular script. The key is knowing your case. If you have two reasonable spouses (relatively speaking) and a modicum of good faith, mediation can be a game-changer that saves thousands of dollars and spares everyone a protracted court ordeal. On the other hand, if you’re dealing with a combative ex who won’t budge, or complex issues that require full discovery and expert input, you might end up viewing mediation as an expensive speed bump on the way to trial.

For divorce lawyers like me who secretly enjoy the courtroom battles (guilty as charged), it’s tempting to dismiss mediation as “boring” shuttle diplomacy. But the truth is, we must weigh its value case-by-case. I’ve seen mediation sessions that felt like a waste – the proverbial highly paid messenger ferrying offers between rooms – and I’ve seen sessions where a talented mediator succeeded in hours where months of direct negotiation had failed. The trick is to deploy mediation strategically: use it when it’s likely to bear fruit, and don’t be afraid to skip it when it’s clearly performative or premature.

In the end, the “Mediation‑tion” effect is not a magic spell that automatically cuts costs. It’s more like a tool – extremely useful in the right circumstances, and clumsy in the wrong ones. If a client asks, “Should we mediate or litigate?” my answer (in true lawyer fashion) is, “It depends.” We’ll look at the complexity, the cooperation level, and the stakes. We’ll consider doing a cost-benefit analysis: is spending $5,000 on mediation likely to prevent a $50,000 trial, or just add $5,000 to the tab of a $50,000 trial anyway? Evidence-based arguments are great, but at the end of the day, every divorce has its unique human factors that defy statistics.

So here’s my parting advice: Mediation is like broccoli – we’re told it’s good for us, and usually it is, but that doesn’t mean it’s delicious in every bite. 🌳 Some divorce cases need the broccoli (it’ll make them healthier and save them money). Others will spit it out and need the meat-and-potatoes of litigation. As an advocate, I’m not afraid to serve up the broccoli when it’s the right dish – but I’ll also call out when a mediation looks like merely garnish on the main course of a courtroom showdown. In Cook County, early mediation can reduce litigation costs most of the time– just not all of the time. And that, dear reader, is the nuanced truth, however unpopular a hot take it might be at the ADR fan club.

For more insights, read our Divorce Decoded blog.