When Divorce Mediation Fails: What’S Next?


Divorce mediation is a type of alternative dispute resolution that divorcing couples go through to resolve their differences in a mediated setting rather than through litigation and in court. The mediation process is a private process in which only the couple, the parties’ respective attorneys, and the mediator are present.  If a party has retained a professional such as a forensic account, that professional may also be present at the mediation.  The attorneys serve to advise their clients and advocate their best interests while the mediator helps the parties come to a mutual agreement.Divorce mediation can be a highly effective tool and can help reduce the cost of divorce significantly. However, not everyone is successful with the process. If you and your spouse have too many differences, and if you tried mediation but it did not work for you, you may wonder what is next.

When Mediation Fails, Step 1: Evaluation

The overreaching goal of mediation is to help divorcing parties come to a mutual agreement through civilized conversation, negotiation, and open communication. That said, mediation is not perfect, as many couples have small issues of which they may be unaware but that create challenges during mediation. Until the parties identify those issues and work through them as well, mediation may be unsuccessful.

When mediation fails, the mediator will perform an evaluation to determine if the failure is due to a mere lack of willingness for mediation to work or if it stems from an underlying issue. If the mediator feels it stems from an underlying issue, he or she may try to work through that with the couple. However, if one or both parties demonstrate a complete lack of willingness to make mediation work, the process will prove to be unsuccessful.

When the Couple Cannot Reach an Agreement, Step 2: Party’s Choice

If mediation fails, the couple has a few different options. Those are as follows:

  • Litigation: In court, the judge presiding over the case will review the information and make a determination regarding any issues upon which the couple could not agree. This may be all the issues or just a few remaining ones. Bear in mind that if your case is submitted to the courts it is not necessarily because mediation failed, but rather, because you and your spouse could not come to agreement on few remaining larger issues. The fact that you were able to resolve many of the smaller issues outside of court can save you a significant amount of time, headache, and money.
  • Go Back to Mediation: If you and your spouse feel as if your current mediator is not a good fit or is ineffective, you may decide to restart the process but with a new mediator.
  • Try the DIY Approach: Few attorneys would recommend this approach, as it almost always leads to more costly issues down the road. However, it is still an option. If you and spouse decide that you worked through most of your issues in mediation and that you can resolve the remainder outside of mediation, on-your-own negotiations may work for you. 

The Right Lawyer Can Help

Sometimes mediation fails not because of the parties’ unwillingness to cooperate but rather but because of ill-advised legal counsel. If your attorney pushes you to ask for more, urges you to settle for less, or otherwise pushes you to do something with which you feel uncomfortable, he or she may be the issue. The right lawyer should work with your best interests in mind and not his or her bottom dollar or “success rate.” For the compassionate and competent legal representation you need and deserve, contact the Boca Raton family mediation lawyers at the Law Offices of David L. Hirschberg, P.A. today.