Legal Professionals of Hirsch & Ehlenberger

Mediation: When to mediate versus litigate?

On Behalf of | Aug 27, 2021 | Divorce

Going through a divorce isn’t usually a pleasant time for most people. Many are able to work with their spouse to come up with a separation agreement, custody schedule and other agreements so that they can move on and divorce amicably. Others are unable to do so and need to go through with litigation.

In your case, it’s important to consider whether mediation may be right for you. Divorce mediation is relatively simple and straightforward. You, with your spouse, will go to a private meeting with your mediator. There, you’ll discuss your concerns, such as custody scheduling issues or property division problems. The mediator will help you understand your rights and responsibilities so that you and your spouse can come up with a reasonable agreement.

What can’t mediation do for you?

In the majority of cases, mediation is not binding. That means that the solutions you come up with could be set aside if you or your spouse decide you don’t agree to them.

Mediation is not going to give you an answer, either. The mediator has no power to make binding decisions on your behalf. Instead, they are there to guide you and your spouse toward solutions.

When is it more appropriate to litigate?

It may be more appropriate to turn to litigation if your spouse does not want to negotiate or is not willing to compromise. Mediation does require both of you to want to work together. If you or they don’t want to negotiate, then it’s not an appropriate solution for you.

Mediation is more efficient than going through a divorce trial, but only if you’re both there with the same goals in mind. People who do well in mediation both want to move forward by finding reasonable solutions to their issues. People who don’t do well in mediation are those who feel like they want to “win” their divorces.

If you’re considering mediation or litigation, think about which of these may be more applicable in your case. You can always try mediation and turn to litigation if it doesn’t end up working for you, which may be beneficial in settling at least some of your divorce outside of trial.


FindLaw Network