When is Litigation a Better Choice Than Mediation?


There are dozens of benefits to mediation. Being able to negotiate and work out solutions for your divorce settlement is an excellent opportunity for you and your spouse.

Unfortunately, mediation is not for everyone. If despite your best efforts, you cannot get your spouse to cooperate or negotiate with you, or if they have done mediation with you but refuse to make an agreement, then litigation may be the next step.

Divorce litigation is most often represented on television and in the media as a fight. In a sense, it is, but there is a major downside. The biggest issue is that the judge will have control over the outcome of your case. So, even if you do build a strong case for yourself, there is a chance that the judge may not make rulings that are in your favor.

Divorce litigation has its place, though. When two spouses cannot stop fighting or can’t come to an agreement on a certain aspect of their divorce, litigation can help. A judge will listen to your preferences and determine if you have a basis for your requests. Then, they will make the final decision on your case.

Can you use mediation and litigation?

Yes, which is something not all people understand. You can use mediation to resolve several parts of your divorce settlement, but if there is still one area that you can’t agree on, litigation may be required. It’s reasonable to build as much of your settlement in advance of going to court as possible. That way, you’ll both be able to agree on at least some parts of the divorce.

Since it takes longer to go to court and can be more costly than mediation, it’s smart to use mediation to your advantage and to save time on preparing a case for court. For example, if you can settle your property division settlement in mediation, then that can be sent to the court for approval. Your custody dispute could go before the judge, even if the other parts of the divorce are resolved. This is something to consider as you decide how to handle your divorce.