Trial Vs. Mediation - Aaron Delgado & Associates

Trial vs. Mediation

by Aaron Delgado
11/05/20 (Updated: 09/10/21)

Often clients want to know what the difference is between resolving a case at trial versus mediation. During the course of your divorce or paternity case, you probably have had many conversations with your attorney about what your ultimate goals are. Every person’s goals are different.

Many times your goals may not be accomplishable but for legal navigation. If you have clear goals your attorney can help navigate you to what you want. Perhaps its something simple like your prized grill or more complicated like alimony or parental responsibility for your children. Either way, often times it is better to choose to mediate your case versus simply going to trial on it. Here is why:

Creativity and Control

Every aspect of your case is broken down individually and then looked at as a group for negotiations by your attorney. These negotiations are what are done at mediation. You and your ex through counsel are able to negotiate. The beauty of mediation is that you can be creative not just with equitable distribution or alimony, but especially in the form of any type of parenting plan involving timesharing.

If you and your ex have children, I highly recommend you settle your parenting differences at mediation. A Judge will listen to the evidence and while there is no presumption of 50/50 time sharing or any cookie cutter “timesharing plan” the Courts have “suggested plans” and more often than not will simply make your family adhere to one of those. This doesn’t fit all families and often times wont fit yours. You may not care about Labor day. You may be of this religious faith or that one and observe Holidays the Court isn’t even aware of. Perhaps you have a job where you work odd hours or maybe the lifestyle you want means you don’t have time to have a lot of time available to rear your kids anymore.

These are all things you know best. These are things that you have to consider and be realistic with yourself about. These are all things that you can work with to make creative solutions at mediation. These are all things that you may not be able to find solutions for with the Court that are appropriate for you or your ex. You will want to have the certainty and the ability to control the solution because what you can come up with – even if neither of you are super happy with it – is likely to be better than what theCourt can come up with.


Trials are formal. In fact, they’re very formal. There are rules and local practices/customs to abide by. Your attorney will know all of these, that is one of the art forms you’re paying for. However, you may not be able to have your case presented or be able to say what you want in the way YOU want it to be because of these rules and regulations. Your attorney has to abide by the rules of evidence which includes hearsay rules, rules of authenticity and relevancy. Something may be of the upmost importance to you, but it may not come into a trial with the Court.

In a mediation you can say what you want, how you want, and not just to your attorney but to the mediator. You can collaborate with your attorney and the mediator to try to work your position. You can bring up points that correlate into something relevant to you for negotiations but that would have no meaning or possibly relevance in a trial.

You and your attorney are able to present your positions in a different, less formal, and more flexible manner at mediation.


Most family law attorneys work on an hourly rate even if you’re working with legal aid, they are tracking their hours. If you are paying for your attorney out of your own pocket, how much money you have to spend is something to consider.

In mediation, your attorney will make sure he/she knows everything there is to know about your wants and the documents you’ve already provided to get the best result for you. This may take a few hours or even a day or two. But, the effort preparing for mediation is only a fraction of the effort of what happens when preparing for trial, which saves you money. In a trial, your attorney not only has to become very well versed in all of your records and needs, but also needs to make sure everything you have provided can come into evidence. That requires legwork: subpoenas, documents, and records. This takes time, it takes staff support, it takes money.

Besides the preparation itself, most trials can take a day, a week, two weeks. It depends on how many issues you have, how many exhibits you have, how many witnesses you have, if you have any experts, and of course the time to direct, cross, and then redirect them all. A complicated family law trial can takea couple weeks and a simple one can take a day. If you take a case to trial, your attorney is devoting all of that time to your case and usually has one or more staff helping him/her. That means, two people working all day for however many days the trial takes to get it done.

On the other hand, mediation is usually scheduled for a half day or maybe a full day. It is often just you and your attorney. And many times if you have reached agreements they will be reduced to writing during or shortly after mediation. This can save you time which is money. If you mediate the case once and it is close the attorneys may be able to resolve the case without mediating the case a second time, again saving you money.

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