Mediation is a form of alternative dispute resolution that couples often turn to in order to resolve their differences in a divorce process. This process is oftentimes complex and may end up unsuccessful, so it is important for couples to evaluate and understand their other options. Here’s everything you need to know about what happens if divorce mediation is unsuccessful.
What is the Purpose of Mediation?
Divorce mediation is best described as a process by which two parties in a divorce, their attorneys, and a neutral third party work towards a mutual agreement. This process aims to reach this agreed-upon settlement mainly through open communication between the two parties. For this reason, it is important to note that even though a final solution may not be reached, many intermediate issues may have been solved along the way.
Related: Divorce Mediation in California: What You Need to Know
Cases suitable for mediation range include a variety of disputes, including commercial transactions, domestic relations, divorce, and other matters that do not involve complex procedural or evidentiary issues. Divorce mediation is favored in cases where two opposing parties wish to minimize any hostility that may arise from a lawsuit, and come to a mutually beneficial compromise. It is also important to remember that the mediator cannot make the parties do anything, and is responsible for solely offering advice and recommendations.
Related: How To Prepare For Divorce Mediation in California
When Mediation Fails
In the event of an unsuccessful divorce mediation, the couple still retains the right to move forward with a trial and to litigate a decision. If a final solution or agreement is not reached through mediation, the next steps would involve undergoing an evaluative approach to the mediation. Parties may take a break and then try mediation again. This option of taking additional time before re-engaging in mediation may occur especially when the issues at hand are not in immediate need of being resolved. There are several other options in the event of an unsuccessful mediation that will be discussed further.
Additional Options After an Unsuccessful Divorce Mediation
There are no legal penalties for an unsuccessful mediation. For the two parties involved, they do have alternative options, although they may be limited. One example of another option is to litigate a divorce in court. Litigation is a contested action where someone like a judge makes the final decisions for the parties of a divorce unless they decide to settle before trial. The litigation process may involve a series of hearings and temporary orders in a courtroom, thus this may hinder any productive collaboration on any issues trying to be resolved.
There are other forms of alternative dispute resolution in case divorce mediation is unsuccessful, but some may also require court involvement. In addition to litigation, other possibilities for parties of an unsuccessful mediation include:
- Using a different mediator: A different mediator may be beneficial, as every mediation case is unique and may require a different skillset
- Parties agreeing to utilize arbitration instead of mediation: For the option of arbitration, an arbitrator can make a decision that is binding to both parties, who will have to wave appeal rights.
- Collaborative practice: In this case, parties will have their lawyers present as well as the assistance of other collaborative professionals as necessary (child custody professional, divorce therapist, etc.)
- Or, the couple may continue negotiations on their own and a settlement may be agreed upon without a formal proceeding
As a whole, divorce mediation is viewed as a viable option for couples seeking to resolve their differences in a collaborative and mutually beneficial fashion. Yet there is always the possibility that divorce mediation is unsuccessful, so it is valuable for divorce parties to make themselves knowledgeable of their other options, and to understand that every case is unique.
FAQs About What Happens if Divorce Mediation is Unsuccessful
Can you still go to court if mediation fails?
If mediation fails, taking the issue to court is still an option. As discussed earlier, there are no legal penalties or forfeiting of rights to litigation in the event of an unsuccessful mediation. It is also important to note that if mediation fails and a couple wishes to go to court, the case must start over with a fresh start as anything discussed in mediation remains confidential and cannot be admissible in discovery.
Do I need a lawyer if my divorce mediation fails?
It may be beneficial to obtain legal help from an experienced divorce attorney if mediation fails to provide the two parties with a mutually agreeable settlement. This will be true especially if these issues are submitted to a court, as an experienced lawyer will help you understand your options and rights during this complex process.
Contact Us
If you have any more questions on what happens if divorce mediation is unsuccessful, contact us. Get your free consultation with one of our experienced Divorce Mediation Attorneys to discuss other options for your unique legal situation.