Mediation vs Litigation
Comparing Your Family Law Resolution Options

Understanding Your Resolution Options

When facing a divorce, custody dispute, or other family law matter, you have options for how to resolve your case. The two primary paths are mediation—a collaborative process where you and your spouse work with a neutral third party to reach agreement—and litigation—a court-based process where a judge makes decisions for you.

Each approach has distinct advantages, costs, and timelines. Understanding the differences helps you make an informed choice about which path aligns with your situation, goals, and budget.

At Lewis Legal Group, we guide clients through both mediation and litigation. As a Certified Family Law Specialist, Heather Lewis provides strategic advice regardless of which resolution path you choose.

Side-by-Side Comparison

What Is Mediation?

Mediation is a voluntary process where both parties meet with a neutral mediator to negotiate and resolve their disputes. The mediator facilitates discussion, helps identify issues, and guides you toward mutually acceptable solutions.

How Mediation Works:

• Initial session: Both parties meet with the mediator to discuss issues and goals
• Information exchange: You share financial documents, custody preferences, and other relevant information
• Negotiation sessions: The mediator helps you explore options and negotiate terms
• Agreement drafting: Once resolved, the mediator or an attorney drafts a settlement agreement
• Court filing: The agreement is submitted to the court for approval and entry of judgment

Advantages of Mediation:

• Cost-effective: Significantly less expensive than litigation
• Faster resolution: Cases often resolve in weeks or months, not years
• Less adversarial: Preserves communication and co-parenting relationships
• Private and confidential: Discussions remain outside public court records
• Flexible outcomes: You can craft solutions a court might not order
• Lower stress: Collaborative environment reduces emotional toll

Disadvantages of Mediation:

• Requires cooperation: Both parties must participate in good faith
• No guaranteed outcome: Either party can walk away without agreement
• Power imbalances: May not work if one spouse dominates or intimidates
• Not appropriate for abuse cases: Domestic violence requires court protection
• Disclosure depends on honesty: No formal discovery process to uncover hidden assets

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What Is Litigation?

Litigation is the traditional court process where each party hires an attorney, engages in formal discovery, and ultimately has a judge decide contested issues at trial. This is necessary when parties cannot agree or when immediate court intervention is required.

How Litigation Works:

• Filing petition: One spouse files divorce or custody papers with the court
• Response: The other spouse files a response and may file their own requests
• Temporary orders: Court may issue temporary custody, support, or restraining orders
• Discovery: Formal exchange of financial documents, depositions, interrogatories
• Hearings and motions: Court appearances to resolve interim disputes
• Settlement conferences: Court-mandated meetings to encourage settlement
• Trial: If no settlement, a judge hears evidence and makes final decisions

Advantages of Litigation:

• Formal discovery: Subpoena power to uncover hidden assets or income
• Court enforcement: Immediate consequences for non-compliance
• Protection from abuse: Restraining orders and supervised visitation when needed
• Guaranteed resolution: Judge will make decisions if parties can't agree
• Legal precedent: Court follows established law and prior rulings
• Appellate rights: You can appeal unfavorable decisions

Disadvantages of Litigation:

• Expensive: Attorney fees, expert witnesses, and court costs add up quickly
• Time-consuming: Cases often take 18-24 months or longer in San Bernardino County
• Stressful and adversarial: Contentious process that damages relationships
• Public record: Court filings and hearings are generally public
• Unpredictable outcomes: You lose control over decisions affecting your family
• Rigid solutions: Court bound by legal guidelines, less room for creativity

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Cost Comparison

Cost is often a deciding factor when choosing between mediation and litigation. Here's what you can typically expect in San Bernardino County:

Mediation Costs:

• Mediator fees: $150-$400 per hour, typically 4-10 hours total
• Attorney review: $500-$2,000 for limited scope review of agreement
• Court filing fees: $435 for divorce petition in California
• Total estimated cost: $3,000-$10,000 for both parties combined

Litigation Costs:

• Attorney retainer: $5,000-$15,000 initial deposit per party
• Hourly attorney fees: $250-$500+ per hour
• Court filing fees: $435 plus additional motion fees
• Discovery costs: Depositions, document production, expert witnesses
• Trial preparation: Extensive attorney time for trial strategy
• Total estimated cost per party: $15,000-$50,000 for contested divorce
• High-conflict custody trials: Can exceed $100,000 per party

These are estimates. Your actual costs depend on the complexity of your assets, level of conflict, and how many issues require court intervention.

Timeline Comparison

Time matters when you're going through a family law case. Here's how mediation and litigation timelines typically compare:

Mediation Timeline:

• Initial consultation: 1-2 weeks to schedule
• Mediation sessions: 2-8 weeks depending on scheduling and complexity
• Agreement drafting and review: 2-4 weeks
• Court filing and approval: 1-2 months
• Total time: 2-6 months for most cases

Note: California still requires a six-month waiting period from service of divorce papers before the divorce can be finalized, but mediation allows you to resolve all issues and reach closure much faster than litigation.

Litigation Timeline:

• Filing and service: 2-4 weeks
• Response deadline: 30 days from service
• Temporary orders hearing: 2-4 months from filing
• Discovery period: 6-12 months
• Settlement conference: 12-18 months from filing
• Trial date (if no settlement): 18-24+ months from filing
• Total time: 12-24+ months in San Bernardino County

High-conflict cases with multiple motions, custody evaluations, or complex financial issues can take significantly longer.

When Mediation Is Appropriate

Mediation works best when:

• Both parties are willing to negotiate in good faith
• No domestic violence or abuse exists in the relationship
• Financial disclosure is straightforward and both parties are honest
• You want to preserve a co-parenting relationship and minimize conflict
• You prefer privacy and want to keep details out of public court records
• Cost and time are significant concerns
• You want creative solutions tailored to your family's specific needs
• Communication is possible between parties, even if difficult

When Litigation Is Necessary

Litigation may be required when:

• Domestic violence or abuse requires court protection and restraining orders
• One party refuses to negotiate or participate in good faith
• Hidden assets or income require formal discovery and subpoena power
• Substance abuse or child safety concerns need court intervention
• Significant power imbalance prevents fair negotiation
• Complex business valuations or high-value estates require expert testimony
• One party is unreasonable and refuses any compromise
• Immediate court orders are needed to protect children or assets

Can You Combine Both Approaches?

Yes. Many families use a hybrid approach:

• Mediate most issues, litigate one or two: Resolve custody and support through mediation but litigate complex property division
• Try mediation first: Attempt mediation and move to litigation only if it fails
• Litigate temporary issues, mediate final settlement: Get emergency custody orders through court, then mediate long-term arrangements
• Use attorney-assisted mediation: Each party has an attorney present during mediation sessions

A Certified Family Law Specialist can help you determine the most strategic combination for your case.