What Happens When Mediation Fails? 9


What happens when mediation fails is another popular question that I am often asked as a Boynton Beach divorce attorney and owner of DIY Divorce in Florida.  In Florida, before you can have a family case trial with a judge, you must first attempt mediation. Mediation does not always work, at least on the first try. Mediation fails – but often people give up too soon.

Most courts in Florida have mediators on staff. When mediation was first introduced, it was seen as a way for families to work out their private disputes. Now, more often, it is seen as a hoop to jump through before getting to the judge. That’s too bad, because most judges prefer that divorcing spouses make these decisions themselves.

When mediation “fails” you have a several choices:

Go to trial

Go back to mediation and try again

Continue negotiations on your own

You can simply throw up your hands and “take it to the judge” and go to trial. That is not usually a satisfactory choice however. The fact is that most judges do not want to make decisions about your family after a short trial. Judges know that you have so much more information and they will hear only a small fraction of it in a trial. They want you to make the choices because this concerns your family and will have lasting repercussions.

Many divorcing spouses want to go to the judge to be able to tell their story. Unfortunately, this does not happen often in court. Instead, the judge gets small bits of information filtered through the rules of evidence. It is actually during mediation that your story comes out and gets told.

Of course, you can continue negotiations on your own. Often this does not result in any progress toward settlement. In some cases, however, mediation can narrow the dispute down. Once you know what the issue really is through this narrowing process, you may be able to come up with a suitable resolution. In my experience as a divorce attorney, this seldom happens.

Many times, divorcing spouses use the court mediators only one time, expecting to settle all the issues between them in 60 or 90 minutes. That is not always realistic, especially if you have children and/or a complicated financial situation. That is why I encourage do-it-yourself’ers (and all divorcing parties), to attend several mediation sessions. Depending on the number of contested issues between you, you may need three or more mediation sessions to resolve the case.

Mediators are trained to help divorcing spouses generate alternatives and to understand what the true interests are behind the parties’ positions. That is what makes mediation a valuable process.

Mediators ask “Why?” you want the outcome you are asking for. Most people cannot look behind their positions and go to the true “interest.” It is very difficult ask yourself why you really want what you want. That is what makes mediators valuable in a divorce dispute.

Mediators can often help you resolve disputes that were seemingly impossible to resolve between the parties. So if your mediation fails, please go back and try again. Mediation fails – but not often.

If you are looking for a family mediator in your do-it-yourself divorce, contact me. I assist divorcing couples in reaching resolution of their divorce disputes so mediation does not fail.



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9 thoughts on “What Happens When Mediation Fails?

  • pradeep tripathi

    my case in mediation center in lucknow high court…but mediation fail, plz suggest best option in divorce. my case is running in high court or district court.. plz suggested best option.

    thanks.
    pradeep tripathi

  • Kacie

    My boyfriend is going to mediation with his ex and we know she is purposely trying to make it so it dosnt work so it will go to trial, is there anything he can do?

    • belinda

      Why would he be mediating with an “ex”? If he is not dvorced, she is not yet his ex. You are not involved in this process, so there is nothing you can or should do. This is their issue, not yours.

      • pam Post author

        Approximately 40% of divorce cases with children return to court for either modification or enforcement actions. These post-judgment cases are required to mediate before going to trial, just like initial divorces. In addition, when you use the collaborative process, the collaborative team is there for you post-judgment and issues often return to the team for support and guidance. It is never a mediator’s issue in any of these instances. A mediator merely helps the parties see what the true issues are and to resolve them.

  • Logan

    Hello Pamela,

    As a newly inspired mediator in training at the University. I was wondering if you wouldn’t mind my asking some questions about the process of mediation you employ. Please email me if you can help me with my quest to a better understanding of the process.