When Mediation Fails

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 What If You Can’t Agree at Mediation?

Mediation refers to the process in which a neutral third party intervenes between two conflicting parties. This is done in an effort to promote reconciliation, settlement, or compromise. Mediation can be an effective tool for resolving almost all civil, or non-criminal, disputes. Some examples of the types of cases that may be resolved through the use of mediation include, but may not be limited to:

Mediation can provide disputing parties with an opportunity to identify and resolve divisive interpersonal issues that may not have originally been considered as part of the dispute. As a type of alternative dispute resolution, mediation allows parties to resolve their differences rather than go through the litigation and court processes. It is considered to be a private and confidential process between the parties involved, as well as their attorneys and a neutral third party that will assist them in coming to a mutual agreement.

When mediation does not work, it is important to remember that it can be best described as a process, rather than an outcome. Overall, mediation is intended to help disputing parties come to a mutual solution through open communication. Although a resolution may not be achieved, that does not mean that mediation has failed. Rather, many intermediate issues and problems may have been solved throughout the process.

Generally speaking, if the disputing parties fail to come to an agreement or settlement, the next step would be to undergo an evaluative approach to the mediation. During this evaluative approach, the mediator who is facilitating the mediation process will assume the role of a fictitious courtroom. In that role, they will take into consideration all of the evidence and facts that have been presented to them. The mediator will then predict what a court of law would most likely decide on the matter, based on all of the evidence presented, were the issue to proceed to court.

What If We Can’t Come to a Final Agreement Through Mediation?

There are many advantages to mediation. Some of the most notable include:

  • Mediation generally lasts a shorter amount of time than a trial;
  • As previously mentioned, mediation is confidential and nothing that is said during mediation can be used in court if mediation fails;
  • Mediation is generally more cost effective; and
  • The process is especially effective in terms of addressing matters that are sensitive or personal in nature.

Although mediation has several benefits, there are some disadvantages that should be considered prior to pursuing the process. Because mediation is a private meeting without the formal rules of an arbitration or litigation, disputing parties frequently hide information or evidence they might not have been able to conceal had they been in a traditional court setting. 

Second, mediation assumes that the disputing parties are equal in power. If one party is passive or if one party is abusive in any way towards the other party, meditation cannot help with asserting the rights of the wronged party. This is why, among other reasons, meditation is not used to resolve criminal matters. Finally, if the mediation fails, the parties will have wasted their time and money.

If mediation is not successful, there are some other options to take into consideration:

  • Go To Trial: When the mediation process does not resolve the issue at hand, the case may still go to court in order to be reviewed and decided by a judge. To reiterate, even if the case must be submitted to a court after mediation, this does not necessarily mean that the mediation process was not successful. There are many smaller issues that make up larger issues that may have been discussed and resolved through mediation, which is worthwhile in itself. Reaching a total settlement through the use of mediation is not necessarily always the goal;
  • Go Back To Mediation: Disputing parties should keep in mind that they may pursue another mediation process, and begin a new mediation. The disputing parties are allowed to choose a different mediator if they believe that the current mediator is ineffective, or has contributed to the inability to resolve the matter; and
  • Continue Pursuing Negotiations On Your Own: Pursuing negotiations on your own may seem like an unlikely solution, due to the fact that if that were possible you would not have needed to pursue mediation in the first place. However, disputing parties may be able to resolve the issue on their own once they have heard the perspective of a neutral third party. Continuing negotiations on your own may be an option if a settlement or agreement can be reached without the use of formal proceedings.

Can We Still Go to Court If Mediation Fails?

If the mediation process fails, and you do not reach an agreement or settlement, you can still bring the issue to court. Parties do not relinquish their right to litigation if they wish to resolve the dispute in mediation first. However, it is imperative to note that this process could be much more expensive, due to the fact that you still must pay for both the mediation process and the litigation process. Additionally, you could pay much more in legal fees, and the dispute could take longer to resolve since you lose control of the dispute once you enter into the judicial process.

Something else to note is that anything that is discussed or has occurred in mediation remains confidential. What this means is that it cannot be considered admissible in discovery. Going to court would mean that the case must start all over, as if the mediation never took place.

It is helpful to consider the differences between mediation and litigation, as well as mediation and arbitration. Mediation leaves the outcome of the case to the disputing parties, rather than awaiting a decision made by a judge or jury through litigation. Because of this, the disputing parties are able to create a solution that a court might not be able to make. Additionally, mediation is a private process; the disputing parties do not need to disclose any information regarding the dispute to the public if they wish not to. As a rule, court trials must transcribe everything that is said onto the public record.

In terms of mediation versus arbitration, a mediator generally has no authority to render a legally binding decision. It is up to the disputing parties themselves, with the assistance of the mediator, to work informally toward a mutually satisfying agreement. An arbitrator, acting as a judge, conducts a hearing between the disputing parties and renders a legally binding decision. Arbitration has long been used to resolve commercial and labor disputes, resembling a court hearing. Mediation does not have many of the formalities that are associated with arbitration or court settings.

Do I Need a Lawyer If Mediation Fails?

If you are facing issues associated with failed mediation, you should consult with an experienced local family lawyer. An area attorney will be best suited to helping you understand your state’s specific laws regarding mediation and bringing civil issues to court. Your attorney will also help you understand your legal rights and provide you with advice regarding your next best legal steps. A family lawyer will also be able to represent you in court, as needed.


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