Yes, you can still have a judge decide your case, if you and your spouse have not reached agreement on all issues of the dispute.
If, during the Collaborative Divorce or Mediation process you believe that the process is not effective at resolving the issues in your case to your satisfaction, you should inform your attorney or the mediator of your concerns, to see if there are ways to get over the impasse. If you are still concerned, you may chose another process, including the litigation process (i.e., taking your case to court for a judge to decide). Fortunately, Collaborative cases using the protocols followed by the Middle Tennessee Collaborative Alliance, have around a 90% chance of successful resolution on all issues.
If your case does not resolve, your Collaborative Divorce attorney or mediator will step aside and help you move your case to its next step. The next step could be hiring another settlement-oriented attorney, or a trial attorney to represent you. When you end a Collaborative case, you have a right to your lawyer’s file, as you do when you end any legal representation. (Mediators are not required to give the clients their file.) In both mediation and Collaboration, as well as in litigation, settlement proposals and facts learned during settlement negotiations, are not permitted to be used at trial. This is a public policy established by the courts of the state to encourage open settlement discussions.
If , on the other hand, you have completed the Collaborative or mediation process, and have signed the Marital Dissolution Agreement and Parenting Plan that will be submitted to the court, you have signed a contract and you are bound to the terms of those agreements (absent fraud).
(NOTE: You can also use Collaborative Divorce or Mediation to resolve such post-divorce issues that occur when one or both parties to the agreement have had significant life changes. The terms of the signed agreement can then be modified or clarified, without using the court system).
Also keep in mind that it is possible for there to be many areas of agreement reached in the case, with only a few outstanding issues that appear too difficult to resolve using the process you have chosen. When this happens you have the option of forming a partial settlement agreement covering only those issues that you and your spouse agree upon. Then you can take only the unresolved and difficult issues to court. This will reduce the costs of the litigation that follows.
Therefore, there is often little lost by first attempting to resolve as many issues as possible using the Collaborative Divorce or Mediation process, before turning to the courts and an expensive litigation process. And keep in mind that 90% of Collaborative divorces resolve ALL of the issues using that process alone, where both parties have lawyers, but both lawyers are trained in specific Collaborative techniques and both lawyers commit to a non-adversarial process throughout the case.
There is more information related to this topic on my web site at Collaborative Divorce and Divorce Mediation.