Although we are primarily known for our family law litigation practices, we will be the first ones to tell you that litigation is not always the best path. It can be corrosive, tedious, and really expensive. So one of the first things we do with new clients is go over the various approaches to resolve every dispute. There are other options. Mediation is one of the most popular options.
What is mediation?
Mediation is a structured, collaborative process where individuals work with an impartial third party, the mediator, to try to reach agreements outside of family court. Unlike litigation or some other family court processes, mediation is voluntary and confidential. The mediator does not make any decisions or enter any orders, it is totally up to the parties to decide whether they are willing to accept any particular outcome.
So instead of arguing positions in front of a judge, mediation focuses on:
- Identifying realistic outcomes
- Negotiating efficiently
- Reaching agreements that work long-term
At Novo, our mediation services are guided by our extensive litigation experience—so decisions are informed by what would actually happen in court.
What is litigation?
Litigation is an umbrella term used to refer to going to trial, presenting testimony and evidence, and asking a judge to resolve the disputes. Unlike mediation, litigation offers a framework that is certain to result in a resolution.
This typically involves:
- Formal court filings (pleadings and motions)
- Discovery (written discovery requests, subpoenas, depositions)
- Court hearings and potentially trial
While sometimes necessary, litigation is inherently:
- Slower
- More expensive
- More adversarial and higher conflict
Family court is an inherently adversarial process, especially if the parties resort to personal attacks. It can be extremely emotional and because it is a public system, litigation can take a long time. The average timeline for a divorce or child custody case is probably somewhere between 8-12 months. Single issue cases like child support modifications or enforcements can move a little bit more quickly, but ultimately the timeline is largely out of the litigants' control and dependent upon the judge's calendar. These extended timelines can make the process very expensive.
These costs can be minimized somewhat by choosing a law firm that prioritizes efficiency and cost-effectiveness. Litigation does not have to be "scorched earth" conflict escalation. Our attorneys are often able to resolve contentious disputes with just a few letters to the opposing party or their attorney.
Tip: If you litigate a case, you may “win” legally—but still end up with an outcome neither party truly wanted.
Advantages of mediation
Mediation affords the parties considerably greater control over the outcomes than they would have if they went to court and asked a judge to decide everything. A good mediator will help the parties think creatively to bridge the gaps between their starting positions and arrive at mutually-acceptable outcomes.
This is another benefit of mediation because there are solutions available outside of court that are not available through litigation processes. Typically, mediation is significantly less expensive for the parties, too. It is also less adversarial than litigation.
Mediation is also a more private process. Litigation is a public record. Anyone can go to a local courthouse and lookup a case and see all of the sensitive information submitted to the court throughout the litigation. Because mediation is an out-of-court process, there is no public record. When parties reach settlements, those details can be better kept private, too. For public-facing professionals and high net worth individuals, the privacy alone can be a deciding factor.
So the flexibility, cost-effectiveness, and ability to preserve personal relationships make mediation an attractive option for parties who truly want to resolve disputes.
Disadvantages of mediation
This is a really important qualifier because if one party is unwilling to negotiate in good faith, mediation is unlikely to be a productive experience. This can be one of the biggest downsides to mediation.
Sometimes parties attend several sessions and spend a significant amount of money only to have one party walk away from the negotiating table altogether. This returns the parties to the starting point and all of the mediation costs and the time taken is lost.
So when is mediation the better choice?
The answer depends on several factors, including the nature of the dispute(s), the desired outcomes for both parties, and—most importantly—the parties' willingness to cooperate and collaboratively seek resolution. Mediation really requires a certain level of trust or confidence in the other party.
If that is not present, then it can be best to start the court processes because you can always seek mediation (or other forms of alternative dispute resolution) during the litigation. Doing so can hedge against the expense of unsuccessful mediation and keep your case moving forward regardless of its outcome.
Mediation is often the right approach when:
- Both parties want to avoid court
- There is a desire to resolve things efficiently
- Preserving a working relationship (especially for coparenting) matters
- The case involves complex assets but both sides are willing to engage
- There are privacy concerns
Predicting when litigation may be necessary
Mediation is not always appropriate.
Litigation may be required when:
- One party refuses to negotiate in good faith
- There are hidden assets or significant dishonesty
- There is a severe power imbalance
- Urgent court or law enforcement intervention is needed (think a parent intending to flee with a child)
- There is a history of domestic violence
What many mediators will not tell you
Many mediation providers present mediation as a universally better option.
That’s not accurate.
The truth is: mediation only works when it’s grounded in reality.
If one or both parties have unrealistic expectations, mediation can:
- Drag on unnecessarily
- Break down entirely
- Ultimately lead to litigation anyway
The Novo advantage
Because we regularly litigate family law cases, we can:
- Predict likely court outcomes with accuracy
- Identify when positions are unrealistic
- Guide negotiations toward efficient resolution
- Help draft agreements that will be enforceable and minimize future conflict
You’re not just trying to “meet in the middle”—you’re working toward an outcome that would actually hold up in court.
This dramatically increases:
- Efficiency
- Success rates in mediation
- Long-term stability of agreements
It also leads to less future litigation to have your agreements prepared by actual litigators.Most mediators have no courtroom experience. This often leads to unclear or ambiguous language susceptible to multiple interpretations. We can help you avoid that.
Can you start with mediation and switch to litigation?
Yes, but this can lead to redundant or sunk costs so it is important to honest assess the likely effectiveness of mediation upfront. If your case is unlikely to move forward in mediation, it can be a better approach just to commit to litigation from the start.
The reverse is also true: you can always mediate or negotiate after you start the litigation process. In fact, many cases—particularly divorces in Maricopa County and virtually all cases in Pima County—will be ordered to attend mediation as part of the court process. This can occur even if you already attempted private mediation prior to filing your case. These are scenarios you should candidly discuss during a consultation with any mediator.
Which option is right for you?
The key difference between mediation and litigation is who controls the outcome of the case. When you mediate, you and the other party have infinitely more control over the outcome than when you leave it to a judge.
So the right choice depends on:
- The level of conflict
- Complexity of assets
- Willingness to negotiate
- Your goals for time, cost, and control
There is no one-size-fits-all answer—but there is a right strategy for your situation. That is the aim of our free initial consultations—to help you better understand your options and determine which path is right for you and your family.
Clients choose us because we provide very candid advice from the beginning. Sometimes it is not what you want to hear but we think it is a disservice to try to flatter you into retention. You deserve transparency because knowing the potential outcomes, even when unfavorable, inform your decisions. Sometimes mitigation is the best strategy and if you are being misled by another lawyer trying to secure your business, you can overlook certain paths that later you may wish you considered.
All of our mediators are experienced trial lawyers. This expertise really is our clients' advantage. We have been there. We know what to expect. We’ll help you understand:
- Whether mediation is likely to succeed
- What your case would look like in court
- The most cost effective path forward
Conclusion
While mediation offers flexibility, cost-effectiveness, and collaborative problem-solving, litigation provides a more rigid legal process for resolving complex disputes. By understanding the differences between mediation and litigation and considering relevant factors, individuals can navigate legal conflicts more effectively and achieve satisfactory resolutions. If you are involved in a family law dispute and are unsure how to proceed, contact us to schedule a free initial consultation.
