“They’ll never settle.” That is the answer I hear most often when mediation is first discussed. Fortunately, my experience shows that they will settle. Alternative dispute resolution usually gets you so close to the finish line, that you might end up nudging over it. I’ve never had a client regret the practice, and I’ve never had the occasional client regret not making an agreement there isn’t one. What happens when mediation doesn’t work? The following article from JD supra is a good primer:
In divorce or family law matters, mediation is common. In some cases, the court will order 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 a mediator, the hope is that they 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 avoiding litigation and disputes. A mediated agreement is positive for 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 remember 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 ?
There are numerous possibilities. First, parties can take a break and then try mediation again. If the issues are not in immediate need of being resolved, parties can take some time and then re-engage.
Second, parties might agree to use a different mediator. Sometimes 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. Unlike mediation, in arbitration, 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 can be an option.
Fourth, collaborative practice is another option for parties to consider. In collaborative practice, parties have their lawyers present. 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 is sometimes 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. This is not always possible. For this reason, it is important to consider what happens if mediation is not successful.
Griffin Miers LLP