What Can You Expect If Your Mediation Fails?

On average, divorce mediation is successful 70% of the time. However, even though mediation can be helpful, it does not work for every situation. Knowing what happens if mediation fails can help you decide whether or not you want to try it.

Is Mediation Legally Binding?

A lot of people are wary of mediation because they think that once they agree to go through it, they are stuck with whatever decision the mediator makes. This is not how mediation works. Mediation isn’t an unofficial court trial where you just have to go in and accept whatever others decide. In mediation, you are in charge. You do not have to finalize an agreement in mediation. Furthermore, anything you say is not legally binding until you sign a document agreeing to it. Plenty of couples enter mediation, realize it is not going to work for them, and walk out without having to commit to anything.

Understanding the Reasons Mediation Might Fail

To reduce your chance of a failed mediation, it can be helpful to understand why mediation does not always work. Of course, it is common for the process to take time. Couples may disagree at first and need multiple sessions to hash out all the details. However, if you or your lawyer notices any of these warning signs, it can indicate you need to reassess whether mediation is right for your situation.

  • The spouses are too hurt by the end of the marriage to communicate with each other.
  • One or more of the spouses has a history of abusive behavior.
  • The spouses don’t have a plan about how they want to address custody or asset division.
  • A spouse is making requests out of spite not simply out of a desire to protect their own interests.
  • The parties are “playing dirty” by bringing up sensitive personal matters that are not relevant to the mediation.
  • The mediator seems biased because of the relationship they have with the parties.

What Are Your Options If Mediation Fails?

If mediation does fail, there is no need to get stressed. You have plenty of other effective and helpful options to try. Keep in mind that one mediation session failing does not mean you have to give up entirely. Try to consider what is going wrong and whether it can be fixed. In some cases, switching to a mediator with a different communication style can be effective.

You also have the option of trying other divorce methods. If you love the cooperative approach of mediation but cannot communicate well with your ex, try collaborative divorce. This method involves you and your ex getting lawyers, financial advisors, and other professionals to help you draft a satisfactory divorce agreement. You get professionals to represent your best interests but you avoid the full divorce trial experience. Your final option is getting divorced in court.

The main difference between mediation and a litigated divorce is that a court divorce puts the final decision in the hands of a judge. You and your New Jersey family law attorney present your side in court, the judge listens to evidence from both parties, and then they make their final ruling. The court will prioritize being fair to both spouses and finding a solution that is in the best interest of your children. You can rely on them to help finalize things when mediation is not working.

Get Help With Your Mediation or Divorce

Ultimately, mediation is a helpful tool, but it is not always the best option. If your estranged spouse will not work with you, it might be better to get a judge involved. When you are going through a contested divorce in court, you need an experienced lawyer on your side. The law office of Morgenstern and Rochester is here to help. Our New Jersey family law attorneys can assist you with a mediated divorce or represent your interests in court. If you would like to schedule a free consultation at our Cherry Hill office, fill out our contact form or call 856-489-6200.