The honest comparison

Who decides

In mediation, you do. In litigation, a judge does, working from what the two sides present in a hearing. Neither is inherently better. If you and your former partner can reach a sensible agreement, you will almost always build something better fitted to your family than a stranger could. If one of you will not engage honestly, a judge with the power to compel disclosure and impose an outcome is exactly what the situation needs.

Cost

Mediation is normally cheaper, sometimes dramatically so, because you are paying one professional to help you decide rather than two to argue. Litigation costs rise with every motion, deposition and hearing. But mediation that fails and then goes to court costs more than going to court in the first place.

Time

Mediation is measured in weeks or a few months. Contested litigation is often measured in many months or more than a year, largely because of court scheduling rather than the complexity of the case. Note that mediation does not shortcut your state’s statutory waiting periods.

Privacy

Court filings are generally public records, and hearings are usually open. Mediation is private, and the detail of your finances and your family life stays out of a public file, although the final judgment is still filed.

The relationship afterwards

This one is easy to dismiss and hard to overstate if you have children. Litigation requires each side to argue why the other is the worse option. That is difficult to unhear, and you will still be co-parenting a decade later. Mediation is not therapy, but it does not require you to attack each other.

When litigation is the right choice

• When one person will not disclose assets and formal discovery is the only way to find them.
• When there is a history of abuse, coercion or intimidation that makes direct negotiation unsafe or unfair.
• When one person will not participate at all, or uses the process purely to delay.
• When there is a genuine legal question that needs deciding rather than negotiating.
• When urgent protection is needed, which only a court can grant.

It is not either or

Most family cases in the United States settle before trial, and many settle after a period of litigation. It is common to file, exchange information through the court process, and then mediate. It is equally common to mediate most issues and ask a judge to decide the one or two you cannot resolve. Using both is normal, not a failure.