When Do I need to Move from Mediation to Litigation?

Moving from mediation to litigation is always an option, but knowing when to make this kind of move is not always easy. If you are in mediation and are not making good progress, you need to know how to tell when it might make sense to move on.

When to Consider Moving from Mediation to Litigation

Unfortunately, there are some situations in which a spouse’s motivation to try mediation stems more from a desire to stall divorce proceedings than from a desire to resolve and conclude the divorce. Sometimes this is due to fear of a court decision that may require alimony payments or child support; sometimes it is because the spouse currently has physical custody of the children and does not want this to change in any way; and sometimes it is simply because the spouse is having difficulty accepting that the marriage is over and is trying to hold on emotionally in whatever way possible.

If you sense that your spouse is not negotiating in good faith and you have a need that is not being addressed, you may find it necessary to step back from mediation and address that need in court. If you are financially dependent and your spouse has stopped paying your bills, you may need to file a motion for temporary spousal support. If the children are living with you and your spouse is not contributing to their expenses, you may need to go to court for a temporary child support order. If you have moved out of a home where your spouse is still living with the children, or your spouse has moved out with the children, and you do not have a satisfactory visitation arrangement, then you may need to bring a motion to establish temporary child custody and visitation orders.

If you have an urgent need that is not being addressed in mediation, the first thing to do is state the problem clearly. Ask your spouse to sign a temporary agreement that provides an adequate short-term solution to the problem. Your consulting attorney and your mediator can help you put this agreement together. If you do not have a consulting attorney yet, then this is a good time to find one. If your spouse is stalling, whether intentionally or inadvertently, this may change once you make it clear that you are willing to end the mediation and go to court to get your problem resolved. You may even be surprised at the positive response you get once you present a fair statement of your needs.

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If you do not have urgent short-term needs, or you are already operating under a temporary separation agreement, but further progress has stalled, then at some point you may need to go to court for a permanent resolution of the case. Before you make such a move, make sure that you have addressed every issue from every angle that you can think of. Consult with your attorney. Your attorney can help you decide whether or not this is the right time to move on, and if so, how best to proceed. While you can return to mediation after filing a motion in court, it may become difficult; moving to litigation has an unfortunate tendency to erode the spirit of collaboration built up in mediation.

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