When to Go to Court and When to Mediate

"I want to take this to court." I hear it from clients all the time, and my first response is always the same: "Why?"

Court need not be a bad choice; sometimes it is the only right one. But most clients automatically assume there is no other way to resolve a dispute. Court is only one of the options, and not always the best.

Choosing between court, mediation and arbitration is a strategic decision that fundamentally shapes how the dispute runs, what it costs and how it ends. Yet it gets surprisingly little attention.

¶ Four Factors for the Decision

1. Nature of the dispute: principle or money?

First you need to be clear whether you are after a principle or after money.

If it is a matter of principle, such as a precedent, an admission of fault or public confirmation that the other side acted unlawfully, court is probably the right choice. A judgment carries authority and says: "This is how it is." A mediation agreement says: "This is what we agreed." The difference between the two is fundamental.

If it is mainly about money, for example a debt, compensation for defective performance or a financial settlement, consider whether court really is the most efficient way to get paid. Court is expensive and slow, and it guarantees nothing.

I had a client who wanted to sue a former business partner for two million Czech crowns (roughly EUR 80,000). He was right: the partner had breached the contract. But litigation would have taken two to three years, legal costs would have climbed into the hundreds of thousands, and there was a risk that the partner would strip assets in the meantime. In mediation they agreed on 1.6 million within three months. The client got less than he had asked for, but he got it quickly, with certainty and without further costs.

2. Relationship with the other side: will you meet again?

Clients caught up in emotion overlook this factor entirely, even though it is crucial.

Litigation is adversarial by nature: it produces a winner and a loser. Even if you win, the relationship with the other side is usually damaged beyond repair.

If you will never deal with the other side again, because it is a former supplier or a one-off debtor, the relationship may not matter. But if it is your business partner, a neighbouring firm or a subcontractor you work with on other projects, litigation can cost you more than you recover. You lose a business relationship that had value.

Mediation usually preserves the relationship. Instead of asking who was right, it looks for a solution, which in business is often worth far more.

3. Evidence: do you have enough for a court to decide?

A court decides on the basis of what you can prove. What you know, or what you consider "fair", is not enough.

Before opting for court, ask yourself what evidence you have. A contract? Emails? Witnesses? An expert opinion?

If you do, court is a realistic option. If not, it is a gamble, and no responsible lawyer should advise you to gamble with your money and your time.

Mediation has no evidentiary standard. The mediator does not decide who is right but helps the parties find a solution both can accept. Even if your evidence would not be enough for a court, you can still reach a reasonable result in mediation, because the other side also has a reason to end the dispute.

4. Time and money: how much can you afford?

This is the factor discussed least, yet it decides the most.

According to the Czech Ministry of Justice, civil proceedings before district courts took about eight months on average in 2024 (247 days). Cases that go to a regional court at first instance (such as disputes between shareholders, unfair competition or intellectual property disputes) took 662 days on average in 2024, just under two years. A more complex dispute with an expert report, an appeal and an extraordinary appeal to the Supreme Court can therefore easily last several years. Throughout that time you pay a lawyer, court fees and experts, and you still have no certainty about the outcome.

Mediation typically takes a few weeks to a few months and costs a fraction of litigation. You also keep control of the outcome: the agreement is reached by consensus and no third party decides for you.

¶ Comparison: Court vs. Mediation vs. Arbitration

The key differences from the client's point of view:

Duration. Court: months to years (complex disputes with an expert and an appeal, several years). Mediation: weeks to months. Arbitration: months to a year.

Costs. Court: court fees + legal representation + experts. Mediation: mediator's fee (shared between parties) + optional legal representation. Arbitration: arbitration fees + legal representation.

Control over outcome. Court: none, the judge decides. Mediation: full, the agreement is reached by consensus. Arbitration: none, the arbitrator decides.

Enforceability. Court: a final and enforceable judgment is an enforceable title. Mediation: the agreement is directly enforceable only if a court approves it as a court settlement, or if the parties record it as a notarial deed with consent to enforceability. Arbitration: a final award is an enforceable title.

Publicity. Court: public (with exceptions). Mediation: private, and the mediator is bound by confidentiality; confidentiality between the parties has to be agreed. Arbitration: private.

Impact on relationship. Court: typically damages it. Mediation: typically preserves it. Arbitration: depends on the proceedings.

¶ When Arbitration Is the Third Way

Arbitration sits somewhere in between. It is faster than court but more formal than mediation. It is private, which you will appreciate if you prefer your dispute to stay out of the public eye. An arbitral award is also directly enforceable, whereas a mediation agreement needs one more step.

It has its downsides, though. Arbitration is generally a single-instance process. The award can be reviewed by other arbitrators only if the parties agreed to this in the arbitration agreement (Section 27 of the Arbitration Act). A court does not review the award on the merits and can set it aside only on narrowly defined grounds. So if the arbitrator gets it wrong, your options for putting it right are very limited. In larger disputes, arbitration fees can also exceed court fees.

Arbitration makes sense for international disputes, for disputes covered by an arbitration clause in the contract, and where confidentiality is paramount.

¶ Choosing the Forum Is Half the Strategy

I tell my clients this regularly: choosing the right forum is half the strategy. You can have an excellent lawyer, strong evidence and a legitimate claim, but in the wrong forum you will waste time, money and energy.

It works the other way round too. A weaker position in mediation sometimes counts for more than a strong position in court, because in mediation the willingness of both sides to find a solution is what decides. And willingness tends to be a stronger motivator than any statute.

If, after reading this, you suspect that in your situation litigation would be more about prestige than sense, see Not every battle is worth fighting. If you are going to court, look at what you can ask for in a civil lawsuit and at how much of your attorney's fees the court will actually award back. Mediation works partly because it dampens reactive devaluation, the tendency to reject a proposal simply because it came from the other side. I cover this and other behavioural-science findings about disputes in the popular-science piece Statutes are just the foundation: psychology and tactics in a legal dispute. The choice of forum also depends heavily on who will be deciding. A judge exposed to decision fatigue, anchoring and his or her own interests is a different variable from a mediator; I write about that in The Psychology of the Parties. And if you are wondering whether you actually need a different professional rather than a lawyer, such as a crisis communications specialist, a mediator or a therapist, I recommend the piece on the lawyer as illusionist and the triage of the problem.

Before deciding where to take your dispute, go through those four questions one by one, ideally with someone who is not emotionally caught up in it.