What Happens if Family Mediation Fails and An Agreement Cannot Be Reached?

Family Mediation can be a quick and cost-effective solution to resolving disputes related to finances and children. However, there are some instances where mediation may not solve all or any aspects of the dispute. Dealing with family issues such as separation and divorce, especially when children are involved, can be very emotional for both parties. In a highly emotional setting, it can be difficult to come to a successful settlement. When disputes cannot be resolved by mediation, there are other ways to come to an agreement.

What is Mediation?

Family mediation is an informal process facilitated by a neutral third party (also known as a mediator) to settle family disputes without going to court. Mediation is completely voluntary, and in order for a session to go ahead, both parties must agree to attend. Sessions can take around 3 to 4 hours, depending on the complexity of the issues. Parties can also choose to engage in mediation with or without legal representation. Many choose mediation over going to court for the efficiency, affordability, confidentiality and flexibility.


Reasons Why Mediation Might Fail

While there are several benefits of engaging in family mediation, there are a few reasons why separating couples may feel like their mediation session failed.

Emotions. Emotions are normal in mediation, especially when children are involved. There may be instances where one or both parties’ emotions may cloud rational thinking and affect the overall process. Ultimately, it is best for mediators to identify any anger outbursts as soon as possible and diffuse the situation before any emotional outburst derails negotiations. When negotiating issues like child support and shared parenting, remember to keep what’s best for the children as your primary focus, rather than your own needs or wants.

Unrealistic Expectations. A bit of give and take is necessary for successful mediation. If parties are in high conflict over certain issues and clearly they cannot be resolved, then this may lead to mediation failure. Parties should avoid entering the mediation process with unrealistic expectations surrounding the process and outcomes.

Lack of Preparation. Preparation is key to the mediation process. Ideally, both parties and any legal representatives should spend time discussing their approach, considering all options and alternatives for successful compromise, and writing down all possible issues and responses their ex-partner might want to discuss. If the parties are not thinking of and writing down every possible problem and solution, then this may set them up for an unsuccessful mediation.

Poor Mediator. Unfortunately, occasionally a failed family mediation session can simply be due to an inexperienced mediator. A good mediator should be knowledgeable, experienced and an excellent communicator, and be able to remain neutral. Without these key traits, they may not be able to control the flow of the mediation process or the emotions of either party. Our mediators at Emerson Family Law are highly experienced and hold a formal accreditation in Family Dispute Resolution Practitioner (FDRP).


What Are Your Options if Family Mediation Fails?

When family mediation fails and both parties cannot come to an agreement, there are some alternative solutions. It might be best to work with a family lawyer to determine the best strategy for your particular situation.

Your main options are:

  1. Restart the mediation process. If expectations weren’t met or emotions were at an all-time high during the initial mediation session, perhaps it is best to take a bit of time to reassess the situation, further prepare with a lawyer, and schedule in a new mediation session at a later date. You might want to consider a new location, a new mediator, or even try the collaborative law process.
    2. Negotiate privately and with a lawyer. The difference between mediation and negotiation as a conflict resolution method is the use of of legal representation. Negotiation can be done in person, by letter, email or over the phone, but it must be done with a qualified family lawyer.
    3. Choose a new mediator. If you prefer to try the mediation process again with a new mediator, there are a few factors you should consider before making your selection. First, look at their credentials and make sure to select a mediator who is nationally accredited. It might also be worth asking your potential mediator what their background is – does their area of expertise match your needs? Family mediation requires a good rapport between the mediator and the parties, therefore, it is important to find a mediator with a personality and mediation style that matches your expectations.
    4. Go to court. This solution for family mediation failure should be the last resort. Court can be costly and time consuming, so the decision to attend court should not be taken lightly. If you believe your only option is to attend court, we highly recommend you seek legal advice from a qualified family lawyer before making that final decision.


Speak to Our Lawyers About Family Mediation and Alternative Solutions

If you would like know more about family mediation as a dispute resolution process, or you have tried mediation and are looking for alternative solutions, our team of family lawyers can help. We can assist with all family matters including divorce and separation, children’s matters and international family law. Please get in touch to speak to our team.