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What Happens When Mediation Fails?

8 min read
Unbundled Legal Help

by Unbundled Legal Help

If you are in the midst of a divorce, mediation can be an effective method for saving time, money, and stress. The benefits of divorce mediation are clear, but it is not always successful. This can lead many to ask, “What happens when mediation fails?”

If divorce mediation does not produce a signed agreement, that doesn’t always mean the mediation is a failure. If you and your spouse are unable to come to a final agreement, you have other options. You can try an alternative dispute resolution program, continue mediation, or take your case to trial. 

Though you are not required to hire a divorce lawyer to help with mediation efforts, doing so can increase the likelihood of a successful outcome. We can connect you today with a local divorce divorce lawyer to learn more.

What is Mediation?

Divorce mediation is a process that allows spouses to meet with a neutral third-party, and professionally trained mediator who will assist them in finding resolutions to their divorce-related disputes. 

In general, the mediation process is less costly, less stressful, and typically much faster than going to trial. Additionally, it allows you to maintain control over what happens during your divorce. 

Furthermore, divorce mediation helps you and your spouse to develop communication skills that are necessary to draft a divorce settlement agreement that both parties agree to. This can be especially helpful if there is a child involved, as parents can use these skills when they raise their child in different homes post-divorce. 

Couples can choose to attend mediation on their own, or it can be court-ordered. If ordered by a judge, both parties are required to attend sessions. Otherwise, the offending party may be subject to criminal charges as well as a default judgment against them in their divorce case. 

Reasons Why Divorce Mediation Can Fail

In many ways, it is more beneficial to reach an agreement during mediation instead of going to trial. However, it should be noted that mediation is not always easy. It requires both spouses to set aside entrenched differences and work together to solve divorce-related issues. 

Mediation can fail due to a lack of commitment, too many conflicts, or an ineffective mediator. Learn more about each below. 

Lack of Commitment

A successful mediation process requires couples to be committed to finding an agreement. This means that both must be open to considering their spouse’s needs, making fair concessions, and keeping their child’s best interest in mind (if applicable), etc. 

It also requires couples to show up on time, attend all the sessions, and be fully invested in the process. If mediation is not taken seriously, it can be a waste of time, energy, and money. 

Too Many Conflicts 

Divorce mediation is typically reserved for couples who have already admitted that they cannot come to a divorce agreement alone. So, some conflict is expected. However, when the disagreement becomes disrespectful, communication breaks down. One or both parties refuse to compromise, and it can lead to a failed mediation. 

Unprofessional Mediator

In general, mediators are professional, unbiased, and do their jobs well. Unfortunately, there are a few bad apples who take sides and create an imbalanced mediation process. If you suspect your mediator is favoring your spouse, it is recommended that you speak with your lawyer and quickly find another mediator.

What If I Can’t Agree with My Spouse during Mediation?

One hundred percent agreement would be nice, but it is not always possible during divorce mediation. Though creating, drafting, and signing an agreement is the goal, it may not always work out that way. Mediation should be thought of as a process, not so much a specific outcome. 

In some cases, couples can agree on some, but not all of their contested issues during mediation. If that happens, they can further negotiations without the mediator. There is another format for an alternative dispute resolution, or you can decide to take your case to court. 

Can We Go to Court if Mediation Is Not Successful?

Divorce mediation is a process designed to help couples avoid taking their case to trial. However, if the program is not successful, the next likely step is going to court. When your case goes to trial, the outcome of your divorce is decided by a family court judge. 

The court takes into account all the evidence presented, witness testimony, the best interest of the children involved, and recommendations from your mediator or other professionals. 

If you and your spouse still believe that you can agree before going to court, you may want to try a collaborative divorce. During a collaborative divorce, each party hires an attorney. Your attorneys will meet with the other spouse. 

If an agreement cannot be reached during a collaborative divorce format, both parties typically start the divorce process over again, often with new attorneys. 

Tips for a Successful Mediation

It is important to consider what happens if mediation fails. However, it is equally important to focus on ways to make the most of each mediation session and work towards a resolution. Learn more below about how to make your mediation a success. 

1. Pick the Right Mediator

All mediators are not the same. Some are better suited for divorces that involve complex financial matters, others are better at handling highly contentious emotional issues, etc. It is in your best interest to research potential mediators. Interview them before you make a final decision and ensure that you have all of your questions answered. 

2. Be Prepared

Mediation is more informal than a divorce trial. However, it should be taken seriously. Before attending sessions, it is in your best interest to consult with your attorney and have an understanding of the following information:

  • Know how mediation works and what to expect in the process
  • Understand your legal responsibilities and rights
  • Learn how your state divides property
  • Understand how alimony, spousal support, and child support work in your state
  • Know your financial situation, your child’s needs, etc.  

3. Be Honest 

There is no point in negotiation if both parties are not coming to the negotiation table in good faith. If either party refuses to share accurate financial information (assets, debts, additional accounts, etc.), then that could result in a failed mediation experience.  If you believe that your spouse is not being honest during mediation, it may be best to end it and prepare for trial. 

4. Think about The Best Interest of You and Your Spouse

Divorce mediation is not a “winner take all” situation. It is a process designed to facilitate compromise. This means that you may not get everything that you want from the final agreement, but the agreement should be fair to both parties. 

If you go into mediation intending to get everything you want without regard for your spouse’s interests, that could produce an unsuccessful mediation. Additionally, it could prompt your mediator to give an unfavorable impression of you (if your case goes to trial) as part of a formal recommendation to a judge. 

5. Be Open-Minded

Both parties are more likely to get most of what they want when they are open-minded about alternative solutions to the issues. For instance, if you and your spouse both want full custody, you may find agreement if one parent gets custody on weekends and during the summer, while the other has custody during the week. 

Essentially, the more open-minded you are, the more options there are for resolving divorce-related disputes. This can lead to a faster and more successful mediation process. 

Should I Hire A Divorce Attorney?

You have the right to attend mediation without a divorce attorney. However, this is not typically recommended. A family law lawyer can be an asset to you during mediation as well as afterward (should mediation be unsuccessful). A divorce lawyer can:

  • Ensure specific provisions in your agreement are in your best interest 
  • Review your final agreement to ensure that it is fair to you 
  • Assist you in preparing for mediation 
  • Offer negotiation strategies
  • Attend mediation sessions with you, if you wish
  • Help with asset distribution, child support, spousal support, and alimony

Even if mediation without an attorney is successful and you can reach a final agreement with your spouse, it is still recommended that you have an attorney review your agreement before you sign it. 

How Much Will Mediation and Legal Fees Cost?

In most cases, mediation is not free. Court-ordered mediation is typically much less expensive than private mediation. In general, you can expect to pay at least $1,500 for the cost of mediation services. Highly contested divorces generally spend more on mediation than couples that have fewer disagreements and better relationships. 

In addition to the cost associated with hiring a mediator, you must also calculate the cost of hiring a divorce lawyer to handle your case. The average attorney charges $3k – $5k just to get started on your case, and an additional $300 – $500 per hour on top of that. 

Overall, a successfully mediated divorce can cost more than $10,000. Many people cannot afford such high costs and risk an unfair and/or unfavorable divorce outcome as a result. Fortunately, you have an option to hire an unbundled attorney who will take care of certain parts of your case, while you handle the rest. That can save you thousands of dollars in upfront fees. 

Save Money with An Unbundled Lawyer

With unbundled legal services, you can hire a divorce lawyer to handle specific parts of your divorce case, and you take care of the rest. This allows you to have legal representation, protect yourself and interest, and save money at the same time. 

With unbundled legal services, a family law lawyer to help you with your case for as low as $500 – $1500. If your case is more complex, our network of unbundled attorneys does offer full representation at affordable rates. 

Before you spend thousands of dollars on upfront attorney fees, get connected to an unbundled divorce lawyer, and learn if your case is a good fit to be unbundled today.

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