Mediation, Arbitration, and Litigation: The Judicial Role in Different Divorce Paths

By  //  November 10, 2023

A divorcing couple can take at least one path to parting ways: settling the issues themselves, getting a third party to oversee negotiations, and letting a court of law decide.

Sometimes, a divorce case goes through all three, with the judge having the final say according to the law. Across all three options or stages, there’s no room for emotions and errors.

The role of the judiciary system in settling divorce cases varies by option. Not all need a court’s resources, but others are too severe to be settled among the couple (e.g., cases involving domestic violence). Regardless, one thing you can be sure of is that the court is always involved in a couple’s legal separation.

Mediation: low involvement

Divorce is a matter between the couple, meaning the first step is to resolve it through mediation. The parties are responsible for negotiating agreeable terms before a mediator who doesn’t need to be someone with legal experience. That said, it’s advisable to have one in case the case needs to navigate the intricacies of divorce law.

Recently, the trend of hiring a private judge has gained traction. Usually a retired court judge or a practicing lawyer, they’re not constrained to the same issues court judges deal with, like backlogs. Given that divorce cases get more expensive the longer they stay unresolved, a private judge overseeing a mediation can be cost-effective relative to their fees.

As mediations are performed out of court, the judiciary’s involvement is low. One scenario that justifies the court stepping in is choosing a private judge if the couple can’t agree on one. If the case includes sensitive issues like child custody and support, the court may mandate mediation.

Once the process produces a divorce settlement, it must be submitted for ratification by the court and other documents. The judge will review the terms of the agreement to ensure fairness, after which it becomes a court order. Breaching the terms constitutes contempt of court.

Arbitration: some involvement

It makes sense for the judiciary to become more engaged the longer a divorce case goes on, but it can’t take over without the couple exhausting their non-court options. In the case of arbitration, it gets closer to such a scenario but still allows couples to settle their divorce personally.

Arbitration is the middle ground of the three options, held in a private setting like mediation but following a traditional trial’s framework. Similar to mediation, this process necessitates a private judge to serve as a third party or arbitrator. As an out-of-court proceeding, it isn’t bound by court rules, but the arbitrator’s decision can be made legally binding.

Lawyers aren’t required in an arbitration, but not having one to forward your case is ill-advised. One reason is that the losing party can’t appeal an arbitrator’s decision, though the arbitrator has no authority to enforce it. The court can turn it into a formal order, but it generally requires one party to refuse to follow it so the other can file it.

According to the American Arbitration Association, an arbitrator’s decision can be challenged in a court of law only if there’s evidence of corruption or misconduct. 

Litigation: full involvement

Mediation and arbitration that don’t result in a settlement justify the court’s full involvement in the divorce. The case will now be heard before a judge (it may also be heard by a jury, though rarely) and entails legal representation. Courts allow the parties to represent themselves, but it isn’t a good idea without sufficient expertise.

Expect a long, costly endeavor when divorce reaches litigation, not just because the process is lengthy. The American judicial system is suffering from a shortage of judges and staff, coupled with backlogs left by the recent health crisis. In Maine, for instance, its backlog of 6,000 cases back in 2022 prompted the state to recall its retired judges for hearing divorce cases.

The court proceedings don’t even start immediately. State laws mandate that couples wait for a certain period before pushing through with litigation, which ranges from one month to two years, depending on the state. The common argument for this is that couples may need time for cooler heads to prevail, preventing them from pursuing divorce out of impulse.

The upsides of a court decision are that it’s enforceable and appealable, at least up to the U.S. Supreme Court, where its verdict is absolute.


The purpose of the judiciary is to uphold and interpret laws and settle disputes based on those laws. These responsibilities apply to divorce law as much as to any other legal field, albeit the court system continues to creak under the weight of backlogs and other issues.

Despite that, whether in a private setting or within the confines of the courtroom, the court plays a role in legalizing a couple’s separation. It can’t totally remove itself from the divorce equation because of the judiciary’s nature. No one would have it any other way, especially if out-of-court negotiations fail.