Should we use mediation or go to court for a Pennsylvania divorce?

Last updated October 26, 2026.

It depends on the issues, on the county and on whether abuse is part of the history. Pennsylvania lets each court set up a mediation program for divorce and custody cases; a court may order an orientation session, but mediation itself goes forward only if both parties consent, and neither may be ordered where there has been domestic violence or child abuse in the case or the 24 months before it (23 Pa.C.S. 3901). Whatever you choose, the court route stays open, and an agreement reached in mediation still has to be put into a signed agreement or a court order.

Mediation and court are not opposites: a case can use both at different stages. For an overview of how we handle divorce in Media, see our divorce page.

What does Pennsylvania law say about mediation in family cases?

Chapter 39 of the Divorce Code is short. A court "may establish a mediation program" for divorce actions or custody (3901(a)). Once a program exists, the court may order the parties to attend an orientation session that explains mediation; "should the parties consent to mediation," the court may then order them to mediate the issues it specifies (3901(b)). Each court must adopt local rules covering mediator qualifications, confidentiality and other matters (3901(c)(1)). A county with a program may add a filing fee of up to $20 on divorce and custody complaints, and the court may assess other mediation costs on either party (3902). Programs that already existed under local rule were not affected (3904).

The statewide court rules on mediation, Pa.R.C.P. 1940.1 to 1940.8, apply to court-established custody mediation programs and court-ordered mediation of custody cases (Rule 1940.1). The Chapter 1940 rules do not extend to property, alimony or support. Those issues can be settled privately, including with a private mediator the spouses choose, and the resulting agreement is enforced like a court order (23 Pa.C.S. 3105(a)).

How does each route work, step by step?

The custody mediation route, where a county has one.

1. The custody complaint is filed and the court orders an orientation session (Rule 1940.3(a)), unless the abuse exception applies (1940.3(b)).
2. At orientation, the mediator must tell you in writing the costs, the process, that the mediator represents neither of you, any conflicts, that mediation is not a substitute for legal advice, and that you should get legal help drafting or reviewing any agreement (Rule 1940.5(a)).
3. If both of you consent, the court may refer you to mediation on the issues you agree to (1940.3(c)).
4. Mediation ends when the mediator finds you have resolved everything, part of it, nothing, or that the case is inappropriate for mediation (1940.6(a)).
5. Within 14 days, the mediator sends a Memorandum of Understanding if you reached any resolution, or reports to the court in writing, "without further explanation," if you did not (1940.6(b) and (c)).
6. The memorandum "is not legally binding on either party" (Rule 1940.2), so the terms still need to become a signed agreement or a court order.

The court route. In Delaware County, every custody case is listed first before a custody conciliator, before any judge (Delaware County Local Rule 1915.4-1(d)); the steps are in the steps in a Delaware County custody case. Property, alimony and counsel fee claims go to a divorce hearing officer, whose pretrial conference includes a discussion of "potential settlement" (Local Rule 1920.54); the hearing itself is described in what happens at a contested property division hearing. Support goes to a Domestic Relations conference, where an agreement can be turned into an order (Pa.R.C.P. 1910.11(d)(2)).

How do mediation and the court route compare?

What do Delaware, Chester and Montgomery counties do?

Delaware County. The court's current local civil rules compilation and its family court handbook do not describe a divorce or custody mediation program. What they describe is conciliation: all custody proceedings are listed for a conference before a custody conciliator, and agreements reached there go to the court as a stipulation and proposed order (Local Rule 1915.4-1(d) and (e)). The other Media steps are in what to expect in Delaware County family court.

Chester County. Chester's custody mediation rules say all custody complaints and petitions to modify "shall be referred to mediation," all parties must call the assigned mediator within three days, and all parties must attend a custody mediation orientation unless a party or child was the subject of a PFA order in the 24 months before filing (Chester County Rule 1940.3.A). Mediators are paid for orientation at $100 an hour or as the court directs, divided between the parties unless ordered otherwise (Rule 1940.7.A); the county's custody page lists the mediator fee as $100 per person, including up to two hours. If the parties agree, the mediator prepares a Temporary Custody Order, which binds no one until it is incorporated into a written agreement both sign (Rule 1940.6.A(b)). More is in what to expect in Chester County family court.

Montgomery County. Montgomery's local rule requires the parties in a custody action to attend a custody mediation orientation session before the scheduled custody conciliation conference, with an exception where there has been abuse in the case or the 24 months before it (Montgomery County Rule 1940.3). The orientation fee is set by the court and divided between the parties unless ordered otherwise, and the court may waive it for a party who qualifies to proceed in forma pauperis (Rule 1940.8). See what to expect in Montgomery County family court.

What changes the answer?

Abuse. Neither the statute nor the rule allows a court to order orientation or mediation after domestic violence or child abuse in the case or the 24 months before it (3901(c)(2); Rule 1940.3(b)). The mediator also has a continuing duty to screen for abuse and end mediation if it makes the case unsuitable (note to 1940.3). Protection orders are covered on our protection from abuse page.

Which issue it is. Custody mediation rules center on the child's best interest (Rule 1940.5(b)), and a court deciding custody applies the statutory factors; see how judges decide custody. The Chapter 1940 rules do not cover property and alimony, so any mediation there is by agreement.

How much you need to know first. Each spouse files an inventory of assets and debts in a property case (Pa.R.C.P. 1920.33(a)), and discovery is available (Pa.R.C.P. 1930.5(b)). A settlement made without that information can be hard to judge; the factors a hearing officer weighs are in how property is divided.

The money questions. Spousal support and APL follow a formula even in mediation; see how spousal support or APL is calculated.

Whether you can afford the costs. The comment to Rule 1940.5 says the fee waiver rule, Pa.R.J.A. 1990, applies to court-connected mediation services. County filing fees for the court route are in what a divorce costs in Delaware County.

Whether you want it on the record. Mediation communications are privileged and not admissible, but a settlement document can be used to enforce the settlement unless it says it is not binding (42 Pa.C.S. 5949(a) and (b)(1)).

For example: a couple who settle custody in mediation and property in court

Here is a hypothetical. A couple separate in Phoenixville, Chester County, with two children. When the custody complaint is filed, the order refers them to mediation, and each calls the assigned mediator within three days. At orientation the mediator explains the costs and that she represents neither of them. They consent to continue, agree on a schedule, and the mediator prepares a Temporary Custody Order; they review it with their lawyers before signing.

The divorce is different. They disagree about the value of a rental property, and neither wants to share financial details outside the formal process. Each files an inventory, discovery follows, and the property claim goes to the hearing officer. Before the hearing they settle everything except the rental, which is decided after a hearing. This example only illustrates the two routes; it does not suggest that one is better or predict any result.

What mistakes do people make when choosing mediation or court?

• Signing the mediator's memorandum as if it were final. Under the statewide rule it is not legally binding (1940.2); the terms need a signed agreement or an order.
• Skipping legal advice. The mediator must tell you mediation is not a substitute for independent legal advice (1940.5(a)(5)).
• Going to mediation despite recent abuse. The law bars a court from ordering it (3901(c)(2)); tell the court and the mediator.
• Missing a county deadline. In Chester County, all parties must call the mediator within three days (Rule 1940.3.A(a)).
• Settling property without the numbers. The inventory and discovery rules exist so both sides can see the whole picture.
• Assuming mediation stops the court case. The case remains pending; if no resolution is reached, the mediator reports that to the court (1940.6(c)).

What should I do this week?

1. Write down which issues are in dispute: custody, support, property, alimony.
2. Check which county your case belongs in and what its program requires.
3. If there has been abuse in the last 24 months, gather the PFA order or other records.
4. Collect statements for every account and debt so you can judge any proposal.
5. Decide what you would accept on each issue, and what you would not.
6. Talk with a lawyer before signing anything a mediator or the other side drafts; see what to bring to a divorce consultation.

Frequently asked questions

Can a court make us mediate?

A court with a program can order an orientation session. Mediation beyond orientation requires both parties' consent (3901(b); Rule 1940.3(c)), and the parties must mediate in good faith but are "not compelled to reach an agreement" (1940.2).

Is mediation confidential?

Yes. Mediation communications and documents are privileged, cannot be compelled through discovery and are not admissible, with narrow exceptions such as threats of bodily injury in a criminal matter (42 Pa.C.S. 5949).

Can my lawyer come to custody mediation?

Under the statewide rule, participants are limited to the parties, and attorneys do not take part unless the parties agree to invite others under Rule 1940.5(c) (1940.2). You can still consult your lawyer before and after each session.

Who are the mediators?

The statewide minimum is a bachelor's degree with experience in law or a behavioral or social science field, training in domestic violence or child abuse and in divorce and custody mediation, liability insurance and supervised cases (Rule 1940.4). Chester County requires a post-graduate degree and 40 hours of basic training (Rule 1940.4.A).

Can we mediate the property division?

Yes, by agreement. The Chapter 1940 mediation rules do not cover it, and the result is usually written into a settlement agreement; see an uncontested divorce in Delaware County.

What do the terms in these rules mean?

Terms such as conciliation, hearing officer and hearing de novo are defined in our Pennsylvania divorce glossary.

Call Giribaldi Law at (610) 891-8303 or contact us online for a free consultation about whether mediation or the court route fits your divorce. Evening and weekend appointments are available.