What is the difference between mediation and trial?

Mediation vs. Trial in Child Custody.

trial vs. mediationDivorce and custody disputes end in one of two ways, by agreement or by trial. From the day one spouse decides to file for divorce, the parties are free at any point to settle their claims and disputes through private agreement. Often, such an agreement is reached when both sides realize that a further escalation of their litigation is not worth it, either because the costs involved exceed the envisaged outcome, or because, for example, the spouses hope that private settlement will improve and stabilize their relationship in the interest of their children. While the parties may settle in any way they deem preferred, the most common way divorces and custody disputes are being settled is by mediation.
Mediation is a structured conversation about settlement with both your lawyer and your spouse’s lawyer present. The goal of mediation is to reach an agreement on custody and any other outstanding issues without the necessity of trial. Mediations are conducted by mediators, who are often former or retired family court judges. If you and the other side reach agreement at the mediation, an agreement will be written or typed and, if everything goes well, eventually become a mediation settlement agreement (“MSA”), which is irrevocable and binding. The MSA will be incorporated into the final divorce decree.

If all attempts to settle fail, your case will proceed to trial. Trials are always heard by the district judge, and may involve a jury if you or your spouse has requested one. A trial will involve testimony from both parties as well as any other witnesses, including any expert witnesses, as well as opening and closing statement by the attorneys. The judge or jury will then resolve the issues based upon their understanding of the facts as applied to the relevant law. The results of the trial are final and binding, although your lawyer can discuss with you the merits of a possible appeal of the judge’s or jury’s decision.


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