Mediation can be an incredible tool for a less contentious divorce, but what happens when an agreement can’t be reached and your mediation fails? As a seasoned Family Law Attorney with over two decades of experience and a Certified Mediator, I’ve helped numerous clients through this exact scenario. 

While failing to reach an agreement may be discouraging, the most important thing to remember is that pursuing mediation is not a waste of time. In fact, it can have many benefits. In this blog, I explain why a failed mediation can still provide a productive path forward.

1. Remember: Not All is Lost

When a couple enters into mediation, they often have a list of non-negotiables. Whether it’s a particular custody arrangement, alimony amount, who gets to remain living in the marital home—or anything else that’s deeply important to them—having a clear understanding helps set realistic expectations during mediation and constructively guides discussions. 

However, if your spouse does not agree to your non-negotiables during your initial mediation—or vice versa—you will likely be unable to reach an agreement. You can either take a break and try again at a later date, or you’ll have to file for a contested divorce. 

If your mediation does not go as hoped, for whatever reason, remember: all is not lost. Going through the mediation process reveals what is most important to you and your spouse and what key issues need to be resolved as you begin the contested divorce process.  

2. Partial Resolutions Are Still Beneficial 

Have you heard the adage, “Half a loaf is better than no bread at all?” This applies perfectly to a failed mediation. Even if you and your spouse can’t agree on everything, agreeing on most things significantly reduces the disputed issues that have to be litigated. Your mediation helped provide a “working draft” that shows what you two agree or disagree on, and this information can be used as a starting point in your court proceedings. 

Trying mediation first also displays a commitment to peaceful and collaborative resolutions that have your family's best interests in mind, especially if you have young children. Even without a full resolution, establishing common ground shows a willingness to cooperate, which will be beneficial as you move forward in the divorce process and co-parenting. 

3. What Happens Next? Your Options Moving Forward

If mediation did not come to a successful conclusion, there are two primary steps you can take to move forward:

1. Further Negotiations: Depending on the nature of the dispute, taking a break and revisiting discussions at a later date may provide a fresh perspective and lead to an agreement. However, if neither party is willing to compromise on the primary point of contention, additional steps will be necessary.

1. Traditional Litigation: If mediation fails to resolve all issues, the next step is filing for divorce. This means the court will intervene to decide on unresolved matters, such as asset division, child custody, and spousal support. Litigation can take much  longer and be a more costly process involving formal legal proceedings,discovery, and potentially a trial. However, for cases where negotiation is no longer productive, it provides a definitive resolution backed by court orders.