What happens if mediation fails
Compromise is an art form, a difficult balancing act in making each side believe they got the most out of negotiation, although it’s rare for everyone to get exactly what they wanted. Reaching a settlement can be difficult, especially in case of separation or divorce mediation where there are a lot of strong feelings on both sides; ex-spouses may view each other as the enemy and be unwilling to give much when it comes to negotiations, making it difficult to be successful in coming to a settlement.
What is mediation?
Meditation when used in a legal setting is a voluntary form of alternative dispute resolution that allows parties to actively participate in the outcome of their case. It involves a third-party mediator assisting both parties to cooperate and work towards a negotiated settlement. The process in entirely voluntary and both parties are in control of the outcome, and whether they choose to settle. Unlike in the court room, they cannot be compelled to settle in any particular way. One of the most attractive things about alternative dispute resolutions options is their flexibility and the abilities for parties to reach a resolution without having to go through the courts.
What’s good about it?
Mediation also has the benefit of potentially saving the parties involved significant sums of money and time. Skipping mediation can be costly for parties involved, but it’s not right for everyone, so it’s is sensibly not a mandatory requirement. Parties who are unwilling to try and cooperate will understandably not reach a settlement and will likely just end up battling it out in the court room anyway.
Why doesn’t it always work?
Mediation fails for many different reasons. Non-cooperation, a lack of trust or an unwillingness to participate can make it difficult for a mediator to push proceedings in a constructive direction.
It may not be the case that mediation fails early on, but rather later into negotiation as negotiations reach the stickier subject areas. Often broad issues or easier to solve problems are resolved earlier, whilst main areas of conflict or stick points for the parties involved may be pushed further into negotiations. Mediators may find it difficult to resolve conflict further on down the line, even if the parties were previously willing to cooperate.
How should you proceed when it doesn’t work?
If mediation fails later on it may that parties can agree to move forward with areas of the case that they have already agreed to and take the remaining issues into court.
Sometimes when non settlement happens and the parties continue on to the court room, the court may recommend that the parties remain in mediation simultaneously. The mediator may also stay in contact with the parties involved, to try a help them to reflect or resolve their issues over a greater period of time.
Mediation is extraordinarily successful with most mediators finding that cases reach settlement in the first day, but sometimes working through problems requires more intervention such as through arbitration or the courts.
People shouldn’t give up if an agreement isn’t reach in the first day, sometimes it takes some time for issues and grievances to be worked through. Alternative dispute resolution can be highly successful given the right level of support and time. Court rooms can be risky as well, as judges are often asked to rule only on the facts of the case on the day, so it can lead to arrangements that are unfavourable for both parties. Court is also a highly confrontational setting that can maximise the stress involved. Mediation might not be a perfect solution, but it is often better than the alternatives and rarely fails.