What happens if mediation is unsuccessful?
Co-Author Darcy Gee
Family mediation is often an excellent way for couples who are divorcing or separating to discuss arrangements and resolve disagreements about their children or finances. Mediation is a form of dispute resolution which involves couples voluntarily trying to reach a settlement. You will meet with a specially trained family mediator to work through issues together and see if you can arrive at outcomes without the need to go to court. If you wish to find out more information about mediation, see our page which explains it in more detail.
However, mediation is not always successful for everyone. The key reasons for why this might be are as follows –
One common cause is when either one or both individuals refuse to be flexible due to feeling hostile and resentment towards the other. Mediation can require compromise on both sides to help ensure that both parties are satisfied with the outcome. Your mediator might explore with you how you might find a path to compromise and often it can be beneficial to work through what might be causing hostility or resentment before mediation may be truly effective. This might involve bringing a family consultant or therapeutic professional into the process to ensure there is a safe space to explore the blockers to compromise and try to overcome them.
Emotions such as anger and sadness can cloud thoughts which hinders the chance of being able to move forward. Sometimes a negative attitude can also make the other person reluctant to mediate. Divorce and separation can be an extremely stressful period however mediation sessions can be approached as calmly as possible and each party feels they are being listened to then you are more likely to resolve matters in a more amicable way which provides a better outcome for both the whole family. Your mediator will be trained in assisting with effective communication and ensuring everyone feels heard and can recognise their emotions and how they might be impacting decision making.
Communication is vital for a successful mediation session. Couples need to listen to each other and feel comfortable expressing their views. Communication helps understand what the other person is trying to achieve, and their reasoning behind this. For example, what your ideal outcome would be and your offer for settlement. A breakdown in communication can hinder a settlement being reached. It is often the case that at the outset of mediation communication between a couple has broken down, and some of the time spent in mediation is then focused on rebuilding that communication or exploring new ways of being able to communicate. This requires patience and time spent from both sides to ensure that they are ready to work together constructively with the mediator.
Many people go into mediation expecting to achieve everything they want. It can be helpful to discuss your situation with a solicitor prior to mediation to understand what your position is and what the outcome might look like. You could perhaps make a list prior to mediation of what you are willing to negotiate on and areas which you hold a strong position on.
It is vital to ensure that couples have shared all the required information, this helps avoid delays and any unexpected matters arising.
If your first mediation session is unsuccessful don’t stop trying. Lots of people need multiple mediation sessions to reach a settlement. You could try and seek advice from a legal professional during the process to help understand your position and how to progress. Remember to always stay open-minded and that communication is key. Your mediator will guide you through the process and let you know what information you need to provide and what might help to keep the process moving forwards.
If you are not able to arrive at a workable outcome together or mediation is unsuccessful for any reason, what happens next? Following an update to the Family Procedure Rules in April 2024, there is now a much greater expectation that couples engage in other Non-Court Dispute Resolution (NCDR) especially before resorting to Court proceedings.
You and your respective partner can agree to use the collaborative process. This is where each of you instruct specially trained collaborative solicitors to engage in face-to-face negotiations in a non-confrontational and constructive manner. You will work together with your respective lawyers to find a workable solution for you both. This has many of the same advantages as mediation, with the added advantage that both of you have a solicitor closely involved throughout who is able to provide you with real time legal advice. However, you cannot force someone to use the collaborative process and if they won’t do it, it is a non-starter as it is voluntary process. The formal collaborative process cannot be used unless both parties have their own collaborative solicitors.
If you wish to find out more about the collaborative process, you can find out more information here.
You can decide to negotiate through solicitors, which is typically much less expensive than court proceedings. The overall aim of lawyer-led negotiation is that utilising solicitors’ correspondence or attending a round table meeting can bring about an outcome favourable to both parties. There are many advantages of lawyer-led negotiation, one of which is that you have the benefit of immediate legal advice whilst negotiations are taking place. This process option also provides each of you with a little more distance if you prefer, with much of the negotiation taking place through letters. The downside is that this can be more expensive than mediation or the collaborative process, and it does rely on both of you engaging with your solicitors and working to an agreed timetable so that things don’t drift.
If you wish to find out more about lawyer-led negotiation and the process, you can find out more information here.
Another alternative is arbitration. This is effectively a private court system where you commit to abiding by the decision of an independent arbitrator. You get to choose and agree who the arbitrator will be, the location, date and time of the arbitration. The arbitrator will make a decision applying the same law as the court but uses a procedure that tends to be faster and more streamlined than the court process. You can use arbitration to resolve matters relating to finances or issues regarding your children. It should therefore be quicker, less expensive and result in the same outcome. It is possible for parties who represent themselves to use arbitration. It is voluntary so you cannot force someone to engage in the arbitration process.
If you wish to find out more about arbitration and the process, you can find out more information here.
If all aspects of Non-Court Dispute Resolution fail, you may be looking at issuing Court proceedings. The Courts tend to assist with financial and children matters which allow people who are unable to mutually agree or make decisions to come to a finalised outcome. The job of the Court is to listen to both people and their respective positions and make a decision. The downside to court proceedings is that it is a very expensive method, and the courts are facing an extreme backlogs since the COVID-19 pandemic, meaning your proceedings may be delayed and it could take a while before reaching a resolution. However, if Non–Court Dispute Resolution did not work for you, the Court can assist in making a final decision on your dispute, which allows both of you to be able to move forward with your respective lives.
If you wish to find out more about Court Proceedings and the process, you can find out more information here.
At Family Law Partners, we endeavour wherever possible to keep our clients out of court. There are, of course, some cases which will always have to be litigated, but wherever possible, we would always try to use alternatives to court; mediation, lawyer-led negotiation, collaborative process and arbitration. Taking advice from a specialist family solicitor at an early stage in a dispute helps clients to choose the best route towards to a successful outcome.
Polly Dallyn is a Senior Associate & Mediator in our Horsham office.