Can I switch from mediation to litigation if it isn’t working?
Please note that these answers are not legal advice. If you’re in need of legal advice or a lawyer please visit our Expert Guide
Yes, you can switch from mediation to litigation if mediation isn’t working.
Here’s how the process works and what to expect:
Mediation is Voluntary (in Most Cases)
Mediation is typically voluntary, meaning you can choose to stop at any time if it’s not productive.
Even in states where mediation is required before litigation, you are not forced to stay if it’s clearly not resolving issues.
Signs It’s Time to Switch to Litigation
You might consider switching if:
No Progress is Being Made: You’re stuck on key issues with no movement.
One Party is Uncooperative: If your ex is unwilling to negotiate in good faith.
Power Imbalance: If one party dominates discussions or withholds information.
Hidden Assets or Financial Secrecy: If you suspect your ex is hiding income or property.
Abuse or Intimidation: Mediation is not appropriate if there’s a history of domestic violence or manipulation.
Legal Complexity: If there are complex financial matters or business interests that require legal intervention.
How to Transition from Mediation to Litigation
Inform the Mediator: Let the mediator know that mediation is not working.
File a Motion with the Court: If you already have a case open, you can request to move forward with litigation.
Hire or Re-engage Your Attorney: If you don’t already have one, you’ll want legal representation for the litigation process.
Prepare for Discovery: Litigation involves more paperwork and formal processes, including financial disclosures and document exchanges.
Request Temporary Orders (if needed): If you moved out, need financial support, or need temporary custody orders, you can file for these while the case is pending.
Will the Mediation Progress Be Used in Court?
Confidentiality Rules: In most states, what is said in mediation is confidential and not admissible in court.
Exceptions: If agreements were already signed and notarized, those parts may be enforceable.
Example Scenario:
You and your ex start mediation to resolve property and custody issues, but after five sessions, you’re still deadlocked. You discover that financial documents are missing and your ex is unwilling to disclose income. You decide to move forward with litigation to compel document discovery and protect your rights.
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