Divorce Mediation vs. Going to Court in South Carolina

Reviewed by Carrie Warner, Attorney at Law, SC Bar No. 72836 · Last reviewed November 2, 2026

In South Carolina, mediation and going to court are not really either-or choices. Mediation is required in most contested divorce cases before a judge will hold a final hearing, so most couples who disagree will mediate at least once. The real question is how much you can settle at the mediation table and what, if anything, still needs a judge.

This guide compares the two paths so you can think about which issues in your case are likely to settle and which may need a trial. It is part of our South Carolina Divorce Guide.

What Mediation and Litigation Mean

Mediation is a meeting (or series of meetings) where a neutral person called a mediator helps you and your spouse negotiate. The mediator does not decide anything. If you reach an agreement, it is written down, signed, and later presented to the family court for approval.

Litigation means asking the family court to decide the issues. That can include a temporary hearing early in the case, discovery (the formal exchange of information), and a final hearing where a judge hears evidence and issues an order.

Most cases mix the two. A couple might attend a temporary hearing, exchange documents through discovery, mediate, settle most issues, and leave one or two for the judge.

Mediation Is Required in Most Contested Cases

Under the South Carolina Court-Annexed Alternative Dispute Resolution Rules, mediation is mandatory for contested domestic-relations issues in every county, and has been since January 1, 2016. That covers disputes over property, alimony, custody and support. There are exceptions, including requests for temporary relief, contempt actions, DSS cases and some situations involving domestic violence.

So if you and your spouse disagree about anything significant, you should expect a mediation requirement before trial. Our guide on whether mediation is required in a South Carolina divorce covers the rule, timing and exceptions in more detail.

Side-by-Side Comparison

Control: Who Makes the Decisions

In mediation, nothing is final unless both of you agree. That gives you room to shape details a court order might not address, such as how holidays rotate, who handles the sale of the house, or how a retirement account is split between specific accounts.

At trial, the judge makes the decisions after weighing the evidence and the factors in the statutes. For example, property is divided under the equitable distribution factors in S.C. Code § 20-3-620, and alimony is decided under the factors in S.C. Code § 20-3-130. A judge will apply those factors to your facts, which may or may not match what either spouse wanted.

Cost: What Drives the Expense

No one can tell you in advance what a divorce will cost, and this guide does not give dollar figures. What we can describe is what tends to drive cost on each path.

Things that add cost in litigation

• Written discovery and responding to your spouse’s requests
• Depositions and subpoenas for records
• Expert witnesses, such as business valuators or appraisers
• A guardian ad litem in a custody dispute
• Preparing affidavits, exhibits and witnesses for hearings
• Days spent in trial

Things that add cost in mediation

• The mediator’s charges, usually shared between the spouses unless agreed or ordered otherwise
• Gathering financial records so offers are based on real numbers
• Additional sessions if the first one does not resolve everything
• Having your attorney draft or review the final agreement

Mediation does not remove the need for preparation. A settlement reached without accurate financial information can be hard to undo later. For more on overall cost factors, see what affects the cost of divorce in South Carolina.

Time: How Each Path Affects the Calendar

Some timing rules apply no matter which path you take. Under S.C. Code § 20-3-80, a judge cannot issue a final decree on adultery, physical cruelty or habitual drunkenness grounds until three months after filing. In a one-year separation or desertion case, that three-month wait does not apply, but the no-fault ground itself requires a full year of living apart.

Within those rules, a case that settles at mediation can often move to an agreement hearing once the paperwork is ready. A case that goes to trial must wait for the court’s schedule and for discovery and other preparation to finish. How long either takes depends on your county, your judge’s docket and how many issues are disputed.

Privacy

Mediation discussions are generally treated as confidential under the ADR rules, with some exceptions your attorney can explain. That means offers and statements made in mediation usually cannot be used against you at trial.

A contested trial is different. Financial details, parenting concerns and allegations of misconduct may be presented in open court and included in the court file. For some people, especially those with a business, a public role or sensitive family issues, that difference matters a great deal.

When Going to Court May Be Necessary

Mediation does not work for every issue or every couple. A judge may need to decide when:

• One spouse will not share financial information or is suspected of hiding assets
• There is domestic violence or a serious safety concern that makes face-to-face negotiation unsafe
• The spouses disagree about a legal question, such as whether property is marital or nonmarital
• A fault ground, such as adultery, affects alimony and the facts are disputed
• Emergency or temporary relief is needed right away, such as temporary support or custody
• Mediation has been tried and reached an impasse

Even then, partial agreements are common. You might settle the parenting plan at mediation and ask the judge to decide only how a business is valued.

How to Prepare for Mediation So It Has a Real Chance

1. Complete your financial declaration (Form SCCA 430) carefully and gather supporting statements.
2. List every asset and debt, with values and the date of each statement.
3. Write down your priorities and the issues where you have room to compromise.
4. If you have children, draft a proposed parenting schedule, including holidays and school breaks.
5. Talk with your attorney about how a judge might view the main disputed issues, so you can measure offers against realistic outcomes.
6. Plan for taxes, retirement division orders and refinancing deadlines, which are easy to overlook in the moment.

Where an Attorney Fits on Either Path

In mediation, an attorney can prepare you, attend the session, advise you on offers and draft or review the agreement. In litigation, an attorney handles pleadings, discovery, temporary hearings and trial. Some couples also consider collaborative divorce, a separate process built around settlement.

Warner Law represents clients in mediation as well as in contested hearings. You can read more on our divorce mediation lawyer page and our overview of contested and uncontested divorce.

Frequently Asked Questions

Is mediation required before a divorce trial in South Carolina?

In most contested cases, yes. The ADR rules require mediation of contested domestic-relations issues in every county, with exceptions such as temporary relief, contempt, DSS cases and some domestic violence situations.

Does the mediator decide who gets what?

No. A mediator helps you negotiate but has no power to decide anything. If you do not agree, the issues stay open for the judge.

Is an agreement reached in mediation binding?

A signed mediated agreement is generally presented to the family court for approval. Once the court approves it and makes it part of an order, it can be enforced like any other court order.

Can I go to mediation if my spouse has been abusive?

Some domestic violence situations are an exception to mandatory mediation, and safety arrangements may be possible in others. Talk with an attorney about your situation, and call 911 in an emergency or the National Domestic Violence Hotline at 1-800-799-7233.

Can we settle some issues and let the judge decide the rest?

Yes. Partial agreements are common. The court can approve the settled issues and decide only the ones that remain disputed.

Sources

• S.C. Code Title 20, Chapter 3 (Divorce)
• South Carolina Court-Annexed ADR Rules
• South Carolina Judicial Branch