What Happens if Divorce Mediation Fails?

Couples can divorce for several reasons, leading to a complicated legal process that involves dividing assets, determining support agreements, and even creating child custody arrangements. If you work with a divorce attorney in Phoenix, they may recommend mediation as a form of conflict resolution. But what if mediation fails in divorce proceedings?

You may feel overwhelmed and believe that this drawn-out process has no end in sight. However, the divorce proceedings will continue. Below, the divorce lawyers at Lincoln & Wenk explain what happens if mediation is unsuccessful.

What’s the Purpose of Mediation?

Divorcing couples have to come to a legal agreement about how they’ll split their marital assets. Ending the marriage could have a significant effect on one spouse’s finances, for which they seek alimony. If they share children, they’ll also need to establish how they co-parent going forward.

Divorce attorneys may recommend mediation so couples can reach an agreement on their own terms. A neutral third party will mediate the discussion. This professional will guide all parties through the different stages of mediation in hopes of reaching a settlement agreement.

Mediators don’t offer a final ruling like a judge. Their role is to listen to each spouse’s concerns separately, then facilitate negotiations between both parties. When mediation is successful, couples can generally finalize their divorce faster than through litigation, keep the settlement agreement private, and even save money compared to other legal avenues.

What if mediation fails in divorce cases? It’s a possibility, but it doesn’t stop the proceedings.

Common Reasons Why Divorce Mediation Fails

You may go into mediation feeling hopeful. Unfortunately, this strategy can be ineffective for some people. Discover some common reasons for unsuccessful mediation efforts.

Lack of Trust in the Mediator

Divorce mediators should not show any bias toward either party. Despite this, some individuals may believe the mediator is not entirely neutral based on their suggestions. For example, if the mediator seems to approach one’s spouse’s points with more sympathy, the other spouse could interpret that as bias.

Other reasons why people may lose trust in divorce mediators include:

• Lack of experience: If someone doesn’t have much experience leading discussions, couples could become skeptical of the process.
• Conflict of interest: To establish trust, mediators should disclose any potential conflicts of interest. For example, if they previously worked with one spouse, their professional relationship could make the other spouse unwilling to cooperate, fearing biases.
• Urgent tone: Mediators who seem to push for a quick settlement may make one or more parties distrustful of them.

Unrealistic Expectations

What if mediation fails in a divorce because of unrealistic expectations? It’s a real possibility that legal teams should prepare for.

Imagine a couple signed a prenuptial agreement that outlined how they would divide assets in case of a divorce. Per the agreement, it may be legally impossible for one spouse to retain certain assets. If they enter mediation fully expecting to keep those assets and refuse to change their perspective, negotiations may come to a standstill.

Undisclosed Information

Divorce mediation requires all parties to be fully transparent about their assets. Failing to disclose critical information could impact the process and potentially cause one spouse to lose trust in the negotiations.

Let’s say a man owns a business, and for years, his wife helped with tax and financial issues. Rising tensions in the marriage cause them to separate, and the wife no longer assists with the business’s operations. Given her previous knowledge of the husband’s business income, she may suspect that he underreported his income.

A situation like this can create further tension. Rather than coming to an agreement on their own, the couple may choose to let a judge have the final say.

Refusal To Compromise

Despite a mediator’s efforts, some remain unwilling to compromise. Neither party could like the suggestions made and remain adamant about having things go their way.

There are several possible reasons for this. Someone with a stubborn personality could refuse to budge on their preferences, even if they are unrealistic.

One spouse may also have ill will toward the other due to unresolved issues, such as infidelity or financial dishonesty. Not all marriages end amicably. When spouses show animosity toward each other, divorce proceedings could require steps beyond mediation.

When Mediation Doesn’t Work, Explore Other Legal Options

Ask an attorney, “What if mediation fails in divorce cases?” and they’ll likely tell you that the road doesn’t end there. If your mediation has failed for one reason or another, you have other options to explore. Here are the next possible steps a couple could take.

Arbitration

It’s still possible to settle your case out of court. Another voluntary process available for couples is arbitration. This process involves:

• Signing an arbitration agreement: Both parties will need to agree to this process by signing a legal document beforehand.
• Offering evidence and testimony to the arbitrator: Just like with mediation, couples will speak with a neutral arbitrator and provide any evidence related to the case.
• Finalizing the order: Arbitrators have the power to allocate assets and support payments. Once they make their decision, the court will review it before confirming it as a final order.

Litigation

What if mediation fails in divorce cases and the couple doesn’t agree to arbitration? The only remaining option is litigation. The case will proceed to the family law court, where a judge will make the final ruling.

Divorce lawyers tend to play a much more prominent role in the litigation process compared to mediation or arbitration. They gather and review evidence while both parties await trial. This stage could take several weeks or months, depending on the complexity of the case.

Once it’s time for the trial, attorneys representing each spouse will present their arguments in front of a judge. Witnesses may testify, and lawyers will have the opportunity to cross-examine them before concluding their arguments. A family court judge then makes the final ruling, which will become binding in a divorce decree.

Continued Negotiations

What if mediation fails in divorce cases because the couple doesn’t trust their mediator? It’s possible to continue with negotiations in an effort to reach an agreement outside of court.

Some divorcing couples are able to put aside their differences and negotiate terms with each other before presenting their agreement to attorneys. Others may want to keep trying mediation, but with a different mediator leading the discussions.

Reaching a Divorce Agreement in Mediation vs. Settling in Court

Couples must settle the terms of their divorce one way or another. Doing so in mediation versus litigation comes with a few key advantages. Some of the biggest factors separating these two legal proceedings include:

• Timeliness: Divorces requiring litigation tend to take longer to finalize, depending on the court’s schedule. Mediation could allow the parties to reach an agreement sooner, though every case is different.
• Cost: Legal costs could climb the longer a case takes to finalize, which is why reaching an agreement out of court is often considered the more cost-effective option.
• Control: Mediation allows couples to be involved in the decision-making process, whereas with litigation, the judge has all control over the final agreement.
• Privacy: Reaching an agreement outside of court gives individuals some privacy over their settlement. Court proceedings are generally made available to the public.

Tips for Approaching Divorce Mediation

If you’re about to start divorce proceedings, don’t wonder, “What if mediation fails in divorce cases?” Mediation can be successful, potentially saving you time and money. Before you begin, keep the following tips in mind:

• Find a skilled, experienced mediator: A mediator with years of experience facilitating divorce discussions could be the key to keeping your case out of court.
• Communicate with a purpose: Whether you’re discussing your expectations or trying to reach a compromise over certain assets, focus on active listening and ask questions when needed.
• Prioritize resolutions, not conflicts: Mediation is all about resolving issues so a divorce can move forward. Try to keep the discussions civil and avoid bringing up past conflicts within the marriage.
• Remain open-minded: Mediators could present solutions that you never considered before. Be willing to hear them out.
• Explain your reasoning: Don’t just make demands and expect the other side to follow them. Explain why you want your settlement to include certain details in a clear, non-combative manner.
• Let the process play out: You may not reach an agreement in your first session. Expect the process to take some time and let it play out.

Consult Divorce Attorneys About Your Case

What if mediation fails in divorce cases? The divorce process can be complex and unique to every couple. At Lincoln & Wenk, we understand that mediation efforts won’t always be successful.

Our experienced divorce lawyers prepare for litigation and advocate for our clients every step of the way. If you need legal support while navigating a divorce, custody battle, or other family law issue, contact our firm. Connect with us online or call (623) 294-2464 to schedule a free consultation.