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Family Trial by Jury vs Mediation

When divorce and child custody cases go to trial, they’re usually bench trials, i.e., a judge makes the decision. But in some states, a parent can request a jury trial for some of their issues.

The judge often holds a bench trial first. The jury trial follows to decide the remaining issues over which the jury has power.

If your case has progressed to the point where you (or the other parent) might request a jury trial, but both of you might still be open to mediating your remaining issues, it’s important to know how these two approaches stack up against one another.

Why a parent might want a jury trial

Juries listen to the arguments of both sides. They’re often interested in what they see as parents’ moral misbehavior, like drinking too much or having affairs, and they’ll have their own perceptions of those stories. (A jury member may have done a similar thing or experienced it from their partner.) 

Some parents, aware of jurors’ tendency to focus on this type of detail, may look forward to a jury trial so they can tell their story, while other parents want a faster, cheaper bench trial. Others prefer to go to mediation to avoid dragging out this type of argument in court at all.

During a jury selection process, courts try to exclude jurors who show prejudice toward one parent. Nonetheless, jurors inevitably have their own ways of understanding a stranger’s dispute in court. And while experienced family lawyers get to know the attitudes of their local judge, it’s harder for a lawyer to predict how a jury might reach their decision.

Where jury trials are possible: Texas and Georgia

Texas and Georgia allow jury trials. These trials are rare in both states. In part, that’s because they’re harder for courts, which need time to schedule what will likely be a longer trial and then to select a jury. A jury might take two days to hear a complex case. Also, each parent is responsible for paying their lawyer for the extra preparation and courtroom hours, which no one can precisely determine in advance.

In Texas, juries can decide child custody (i.e., conservatorship and possession) but can’t decide child support.

In Georgia, juries decide child support (and other financial matters related to a divorce) but can’t decide custody or visitation.

In some other states, juries can decide limited parts of a divorce — most often, the grounds for divorce. 

For example, when filing for divorce in New York, parents have to give grounds, and they can request a jury to evaluate their grounds. But the jury can’t hear the divorce trial. A jury can hear a New York annulment trial, though.

Choosing between a jury trial and mediation

  • Consider how long you’d like your divorce case to last. Mediation can save time at any stage of your case, compared with going through a full jury trial. This can save you money on legal representation.
  • If there are concerns a spouse could be coerced into agreeing to terms they don’t want, a decision made by a jury might provide a fairer outcome.
  • Handling a jury trial without a lawyer will be very difficult. Though lawyers can help with the mediation process, they aren’t essential to it.
  • Mediators have expertise in family cases, and you can seek one who’s familiar with the types of issues you’re facing. Jury members may lack relevant background for understanding your situation.
  • Though they’re required to remain neutral, mediators can have their own biases that may affect the process. At a jury trial, multiple people weigh in on the decision, which can lessen the impact of bias.
  • In a jury trial, you have to disclose personal details to multiple strangers. Mediation will allow you more privacy as only one person hears your case, and, in most locations, mediation discussions are confidential.

Consider your options

If you’re in Texas or Georgia, think carefully when choosing between mediation or a jury trial. It’s a big decision that can make a difference in your court order and your family’s future.


Ben Coltrin

Ben Coltrin was 21 years old when he quit his job to create the Custody X Change software, which helps parents track their custody schedules, create parenting plans, keep tabs on their child's expenses, and more. Nearly 20 years later, he loves sharing his child custody knowledge and improving the… MORE >

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