“Why pay for mediation if we might end up in court anyway? We might as well litigate from the start.”

I recently had a conversation with an experienced mediator and family lawyer. We both agreed that most family law disputes are best resolved through mediation, particularly where children are involved. Yet despite its many benefits, mediation remains seldom chosen as the first port of call.

I assumed the answer would be a lack of knowledge or understanding about what mediation actually involves. Her answer surprised me. She said the primary reason clients avoid mediation is cost, not because mediation is necessarily more expensive than litigation, but because clients fear the matter will not resolve and they will end up having to litigate anyway. In their minds, mediation becomes an additional cost rather than an alternative one.

The fear of double cost

It is a logical concern on the surface. If you are not confident that mediation will work, paying for it feels like a risk. You could end up spending money on a process that does not resolve the matter, and then spending again on litigation. Why not skip straight to the option you are more familiar with?

The problem with that reasoning is that it underestimates how often mediation works, and overestimates how certain litigation is. Court proceedings are expensive, slow, and unpredictable. Mediation resolves the majority of matters it touches, typically at a fraction of the cost and time. And even where it does not achieve full resolution, it rarely leaves parties worse off. Positions are clarified, issues are narrowed, and subsequent litigation, if needed, tends to be faster and less costly as a result.

The knowledge gap

Part of the hesitation around mediation is simply unfamiliarity. Many people have never experienced it firsthand. Without a clear picture of what the process actually involves, how it is structured, who facilitates it, and what a typical session looks like, it is difficult to choose it with confidence. You cannot trust a process you do not understand.

This is why education around ADR matters so much, for clients, for businesses, and for the legal profession itself. The more people understand what mediation actually is and what it can achieve, the more readily they will choose it. And the earlier they choose it, the better the outcomes tend to be.

Reframing the question

The real question is not whether mediation might fail. It is whether the alternative is as certain as it feels. Litigation is not a guaranteed outcome. It is a long, costly process with no promise of resolution at the end of it either. The fear of paying twice for mediation and then court is understandable, but it ignores the very real risk of paying once for a court process that takes years and leaves everyone worse off.

Mediation is not a gamble on whether your dispute will resolve. It is a structured, skilled process with a strong track record. The question is not whether it works. The question is whether enough people know that it does.

Wondering whether mediation could work for your dispute? We help individuals and businesses understand their options and explore mediation as a faster, more cost-effective alternative to litigation.

This article is for information purposes only and does not constitute legal advice.