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When Mediation Fails

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What Is Mediation?

Mediation is a a form of alternative dispute resolution that parties enter into to resolve their differences rather than going through the litigation and court process. A mediation process is considered to be a private and confidential process between the parties involved. A mediation will usually involve parties and their attorneys and both parties will be assisted by a third party neutral that will help them come to a mutual agreement.

What If You Cant Agree at Mediation?

Mediation is best described as a process rather than an outcome. The main goal of mediation is to help parties come to a mutual solution through open communication. Even if a final solution isn't reached, it doesn't mean that mediation has failed, since many intermediate issues and problems may have been solved along the way.

Usually if the parties fail to come to an agreement or settlement at mediation, the next steps woould be to undergo an evaluative approach to the mediation. In the evaluative approach, the mediator assisting in the process will take the role of a fictitious courtroom and will take into consideration all the evidence and facts that has been presented. Then, the mediator will predict what a court of law would decide of the matter and all the evidence presented were to proceed to court.

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

If two parties to a dispute cannot come to a final agreement through mediation, there are several choices: 

  1. Go to Trial: If the mediation fails then the case can still go to court to be reviewed and decided by a judge. Again, even if the case needs to be submitted to a court after mediation, this does not mean that the mediation was not successful; many smaller issues may have been discussed and resolved in mediation, despite the parties' failure to reach a settlement.
  2. Go Back to Mediation: You can go to another mediation process and begin a new mediation. Some parties may choose a different mediator if they believe that the current mediator was ineffective.
  3. Continue Negotiations on your own: If a settlement or agreement can be made without a formal proceedings, then this can be an option as well.

Can We Still Go to Court If Mediation Fails?

Yes. If the mediation fails and you do not reach a agreement or settlement, you can still take the issue to court. Parties do not give up their right to litigation if they want to resolve the dispute in mediation first. However, this process might be much more expensive since you have to still pay for the mediation process and the litigation process. In addition, you must pay much more in legal fees and the dispute may take longer since you lose control of the dispute once you enter into the judicial process.

Also, anything that is discussed or has occurred in mediation remains confidential and cannot be admissible in discovery. Going to court would be that the case must start all over with a fresh start as if the mediation never took place.

Do I Need a Lawyer If Mediation Fails?

If mediation fails to provide the two disputing parties with a mutually agreeable settlement, issues like divorce and child custody can be submitted to a court. If this is the case, it would be wise to speak with a family lawyer. Working with an experienced family lawyer can help you understand your rights and help you deal with the complicated court system.

Photo of page author Kourosh Akhbari

, LegalMatch Legal Writer

Last Modified: 04-13-2015 03:03 PM PDT

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