Mediation Versus Litigation in Scottish Family Law: Which is Right for You?
Published byBrittany Thomas
Family law disputes can be emotionally challenging, especially when they involve children, and/or finances.
In Scotland, people facing separation or divorce generally resolve their issues through mediation, negotiation, litigation, or sometimes a combination of these. Understanding the differences, and the advantages and disadvantages of each, can make the process clearer and less stressful for you. Therefore, below, we explore both options to help individuals make informed decisions about the best route for them, and their family, in their current circumstances.
What is mediation?
Mediation is a voluntary process where separating couples work with a trained, impartial mediator to reach an agreement. The mediator does not take sides or offer legal advice, instead, they help both parties communicate, explore solutions and find common ground.
Positives of Mediation:
1. Cost – Effective
Mediation is generally significantly cheaper than going to court because it requires fewer hours of professional time and avoids lengthy litigation which will incur significant fees. Costs for mediation are also usually shared between the parties.
2. Faster Resolution
Sessions can be arranged quickly, either in person or online. Couples also often reach agreement after just a few meetings, avoiding the delays associated with court.
3. Less Polarising
The process encourages constructive communication. This is especially beneficial as co-parenting relationships must continue.
4. Confidential
Discussions stay private in mediation – unlike in court proceedings which may become public.
5. Greater Control and Flexibility
Couples can reach arrangements that suit their family’s needs rather than having decisions imposed on them by a sheriff, or judge, which may not ultimately be in the best interests of the family.
Downsides to Mediation:
1. Not Suitable for all Situations
If there is a history of domestic abuse, coercive control, or a significant power imbalance, mediation may not always be appropriate.
2. Cannot Compel Information Sharing
Mediators cannot force either party to disclose financial information, whereas a court can.
3. Agreements are not Automatically Legally Binding
Once an agreement is reached, it will still need to be formalised by solicitors (e.g. in a Minute of Agreement) for it to be enforceable.
4. Requires Willingness to Cooperate
If one party refuses to engage genuinely or attends only to delay, mediation is unlikely to succeed and then matters have been delayed further.
What is Litigation?
Litigation involves asking the Scottish courts to resolve a dispute when couples cannot reach agreement themselves. Cases may be heard in the Sheriff court, or, in some situations, the Court of Session.
Positives of Litigation:
1. Court Orders are Legally Binding and Enforceable
This provides certainty where voluntary co-operation is seen to be unlikely.
2. Appropriate for Complex or High – Conflict Cases
Courts can deal effectively with serious financial disputes, child welfare concerns, or situations involving safety risks.
3. Compulsory Information Sharing
Parties must provide full and accurate financial documentation to the court. The court can take action if someone fails to do this.
4. Clear Procedural Structure
Some clients feel more secure with a formal, rules-based process overseen by legal professionals.
Downsides to Litigation:
1. More Expensive
Court cases can become expensive very quickly, especially if proceedings are prolonged or expert reports are required.
2. Slower
Court timetables, necessary procedural steps, and potential appeals can result in long delays.
3. More Polarising
The process can intensify conflict, making future communication particularly in relation to co-parenting more difficult.
4. Less Control over Outcomes
A sheriff or judge makes final decisions, which may not fully reflect either parties preferred outcome.
Which option is best for you?
There is no one size fits all answer here. Many families start with mediation and if it does not resolve all issues, then they seek solicitor intervention which can often result in going to court. Others begin with litigation because the situation is urgent, or there are safety concerns. For example, seeking an urgent order to obtain contact with their children. They can then often end up going off to mediation once that contact is in place.
Generally, mediation works best when both parties are willing to communicate and negotiate in good faith. Litigation is necessary when co-operation has broken down, urgent decisions are needed, or one party requires protection and authority of the court.
How Our Firm Can Help
Whether you are considering mediation or litigation, obtaining early legal advice ensures you understand your rights and options. Our family law team regularly supports clients through both processes and can guide you towards the most effective and appropriate route for your circumstances. Therefore, please get in touch with us in order to discuss matters further.
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at November 2025. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 319 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.
