What if mediation does not work?

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In divorce or family law matters, mediation is common. In some cases, the court orders that the parties go to mediation. After a case is over in a divorce or family law judgment, the court may even order the parties to mediate future disputes. In other cases, the parties might agree to go to mediation.

When parties go to mediation, the hope is that they can can resolve their areas of dispute with the mediator. Mediators oftentimes try to look for common-ground and compromise between the parties. Mediators may also offer their recommendations to the parties.

Mediation can often be successful. In many scenarios, parties can walk away from mediation having an agreement in-hand. An agreement can result in parties being able to avoid litigation and disputes. A mediated agreement is often positive for the children in a custody case because they will not be stuck in the middle between their parents.

But mediation in divorce and family law matters does not always work. Sometimes, parties go to mediation in good faith in an attempt to resolve their dispute. However, there are times where the parties cannot reach an agreement.

It is important to keep in mind that in mediation, the mediator cannot make the parties do anything. The mediator can only offer their advice or recommendations.

What do parties do when they cannot reach an agreement in a divorce or family law matter? The reality is that there are numerous possibilities.

First, parties can sometimes take a break and then try mediation again. If the issues are not in imminent need of being resolved, parties may consider taking some time and re-engaging.

Second, parties might agree to use a different mediator. In some situations, the mediator is not a good fit for the parties or the dispute. Thus, the parties might utilize a different mediator with a different skill-set.

Third, parties might agree to utilize arbitration instead of mediation. In arbitration, unlike mediation, the arbitrator can make a decision that is binding on the parties. Some parties might be hesitant to engage in arbitration because they waive appeal rights, but arbitration is sometimes an option.

Fourth, collaborative practice is another option for parties to consider. In collaborative practice, parties have their lawyers with them. They also have the assistance of other collaborative professionals, like a divorce coach, financial neutral or child custody professional.

Fifth, parties might have to go to court to resolve their divorce or family law matter. While litigation can often be expensive and emotionally tolling, going to court can sometimes be the only option for parties when they cannot reach an agreement outside of court.

In the end, mediation is often worth the attempt. If parties can resolve their divorce or family law matter in mediation, this can save parties attorneys’ fees and the time spent in court. But this is not always possible. For this reason, it is important to consider what happens if mediation is not successful.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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