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What If You Can’t Agree At Mediation?

Mediation is in reference to the method in which an unbiased 3rd party involves oneself between 2 conflicting parties. This is done to encourage reconciliation, resolution, or compromise. Mediation can be a productive tool for resolving just about all civil, or non-criminal, disputes. Some instances of the kinds of cases that could be resolved through mediation comprise of, but might not be limited to:

  • Divorce agreements;
  • Child custody and/or support agreements;
  • Spousal maintenance arrangements (also known as alimony);
  • Contractual conflicts, like breach of contract;
  • Disputes among landlords and their tenants; and
  • Assorted employment conflicts.

Mediation can offer conflicting parties a chance to recognize and resolve factious interpersonal matters that might not have initially been thought of as part of the dispute. Being a type of optional dispute resolutions, mediation enables parties to resolve their dispute instead of enduring the litigation and court processes. It is thought to be a private and confidential process among those involved, in addition to their attorneys and a unbiased 3rd party that is going to assist them in reaching a collective agreement.

When mediation is unsuccessful, it is vital to remember that it could be best represented as a process, instead of an outcome. In general, mediation is designed to assist disputing parties come to a joint solution through straightforward communication. Even though a resolution may not be reached, that doesn’t mean that mediation was unsuccessful. Instead, many interposed matters and issues might have been solved during the process.

In general, when the disputing parties are unsuccessful in coming to an agreement or resolution, the next phase would be to go through an analytical approach to the mediation. Throughout this evaluative approach, the mediator that is assisting the mediation process is going to take the role of a fake courtroom. In that role, they are going to take into consideration all the evidence and facts that were presented to them. The mediator is then going to anticipate what a court of law would probably determine on the issue, on the basis of the evidence presented, if the issue were to go to court.

What if We are Unable to Come to a Final Agreement Using Mediation?

There are a lot of advantages to mediation. Many of the most notable comprise of:

  • Is usually is faster than that of a trial;
  • As aforementioned, mediation is private, and nothing said throughout mediation can be used in court when mediation is unsuccessful;
  • Is typically more economical; and
  • The process is particularly effective relating to addressing issues that are sensitive or personal in nature.

Even though mediation has multiple benefits, there are some disadvantages that should be thought of before pursuing the process. Since this is a private meeting without the formal rules of a court case, disputing parties many times conceal information or evidence they may not have been able to hide if they were involved in a traditional court environment.

Next, mediation presumes that the disputing parties are matched in power. when one party is passive or when one party is aggressive in any way against the other, meditation is unable to help with declaring the rights of the exploited party. Therefore, among other reasons, meditation isn’t used for resolving criminal issues. Lastly, when it is unsuccessful, the parties would have wasted their time and money.

When it Fails

When mediation is unsuccessful, there are other options to think about:

  • Go To Trial: When the mediation process fails and does not resolve the issue involved, the case might still head to court in order to be examined and determined by a judge. To repeat, even when the case is required to be submitted to a court following mediation, this does not inevitably mean that the mediation process was unsuccessful. There are many smaller matters that make up larger matters that might have been discussed and resolved using mediation, in which is worthwhile on its own. Coming to a total settlement through mediation is not inevitably always the objective;
  • Go Back To Mediation: Conflicting parties need to remember that they may seek another mediation process, and start a new one. The parties are enabled to choose a different mediator when they deem that the present mediator is ineffectual, or has assisted in the inability to resolve the issue; and
  • Keep Seeking Negotiations On Your Own: Seeking negotiations on your own might seem like a doubtful solution, because of the fact that if that were probable you wouldn’t have needed to seek mediation anyway. Nevertheless, disputing parties might be able to resolve their issues on their own after they have heard the point of view of an unbiased 3rd party. Continuing negotiating on your own might be an option when a settlement or solution can be reached devoid of the use of formal litigation.

Can We Still Head to Court if Mediation is Unsuccessful?

When the process is unsuccessful, and you do not come to an agreement or settlement, you are still able to take the matter to court. Those involved do not give up their right to litigation if they want to resolve the dispute through mediation first. Nevertheless, it is crucial to remember that this process can be a lot more costly, because you still need to pay for both the mediation process and the legal process. Furthermore, you could pay a lot more in legal fees, and the dispute might take longer to resolve because you lose control of your dispute after you enter the judicial process.

Another thing to take note of is anything that is discussed or has happened in mediation stays confidential. Meaning that it cannot be deemed allowable in discovery. Heading to court would mean that your case needs to start all over, as if mediation never happened.

It is wise to think about the distinction between mediation and litigation, in addition to mediation and arbitration. Through mediation the results of the case are left up to the conflicting parties, instead of waiting for a decision made by a judge or jury through a lawsuit. Consequently, those involved are able to come up with an outcome that the courts may be unable to reach. Furthermore, mediation is privatized; those involved do not need to divulge any information concerning their dispute to the public when they don’t want to. Generally, court trials are required transcribe everything that is being said on public record.

Concerning mediation as opposed to arbitration, a mediator typically is unable to implement a legally binding decision. The decision is up to the disputing parties on their own, with the mediator’s assistance, to work privately toward a jointly satisfactory agreement. An arbitrator, taking the role of a judge, carries out a hearing among the two parties and implements a legal decision. Arbitration has been used for a long time to settle commercial and labor disputes, likewise to a court hearing. Mediation is without the formalities that are related to arbitration or court environments.

Do I Need an Attorney if Mediation is Unsuccessful?

When you are facing matters related to an unsuccessful mediation, you should speak with a knowledgeable local family attorney. A local attorney is going to be best suited in helping you understand your state’s particular laws concerning mediation and taking civil issues to court. Your attorney is going to also help you understand your legal rights and give you counsel concerning your next ideal legal steps. A family attorney is also going to be able to represent you in court, if required.


  1. Akhbari, K. (2021, September 22). When mediation fails. LegalMatch Law Library. Retrieved November 4, 2021, from https://www.legalmatch.com/law-library/article/when-mediation-fails.html.

Speak with Our Mediators in Arizona Today

While the mediation process is not for everyone, it can save you money, stress, and hassle. Speak with a professional mediator to find out if it is right for you.

If you’re ready to start your consultation with Ogborne Law, visit our Mediation Consultation request page.

Ogborne Law can help with divorce mediation in Phoenix, Arizona, and surrounding areas. Our law office is located at 5020 E Shea Blvd Suite 240, Scottsdale, AZ 85254 inside the Paradise Valley Plaza.

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