I am often asked what happens if divorce mediation fails?

While it does not happen often, there are circumstances where an agreement cannot be reached at mediation or a party refuses to mediate at all.

Here’s what you need to know when divorce mediation fails.

The Divorce Mediation Process

If there is a genuine desire by both spouses to end their marriage as painlessly, quickly and as cheaply as possible, divorce mediation is by far the best option.

Mediators do not represent any party, but remain impartial throughout the process, offering guidance, explaining legal rights and obligations to both parties. They have the necessary expertise to deal with the splitting of assets and children’s custody and child support matters.

Unlike litigation in the Family Court, mediation is an informal affair, taking place in a neutral space, where all information remains strictly confidential. It is a voluntary process, where both parties undertake to disclose all relevant financial information, honestly and clearly.

A mediator’s primary objective is to assist parties to reach an amicable agreement by themselves, which they can both live with, without pressurising either spouse to accept any term they are not comfortable with. Either partner may take the agreement reached at mediation to their own lawyers for a second opinion before signing it and submitting it to the Family Court for approval.

What Happens If My Ex Refuses To Mediate?

Not everyone will want to mediate.

The first thing you need to establish is why your ex is refuses to mediate. If, after you have explained the benefits mentioned above, they are still reluctant to mediate, it could be worth getting someone else to explain the benefits of divorce mediation as opposed to going to Family Court. Perhaps a neutral person or the mediator themselves could speak to your ex to see if they will agree to mediate.

If your ex feels intimidated when in the same room as you, the mediation process may take place in separate rooms and they may also have their own lawyer present to offer legal advice, or a close friend or relative for moral support.

It could also be that your ex is reluctant to disclose certain financial information.

Should you share children under the age of 18 years, your ex needs to know that under Australian Family Law it is mandatory to first attempt mediation when divorcing and before taking matters to the Family Court. If that is the case, neither of you have a choice.

If still unable to convince them, they must face the harsh reality of going through the Family Court which will be costlier, last longer and a Judge will decide the outcome which may not be to either party’s liking. All in all, a far more stressful process for the whole family.

Common Reasons Why Divorce Mediation Might Fail

In cases where divorce mediation fails, it’s often the emotions that get in the way and preventing parties from considering rationally the options available and what might be in everyone’s best interests.

Good divorce mediators can usually recognise the signs early on and are able to calm the situation, remaining focused only on finding solutions acceptable to both parties.

People can sometimes have unrealistic expectations, demanding terms to suit themselves, instead of striving to achieve an outcome that may be in the best interests of everyone involved. There has to be give and take from both sides for any negotiations through mediation to be successful.

Lack of trust may also contribute to the failure of mediation, as is to be expected in any separation or divorce. For mediation to work, both parties need to be totally honest and disclosure all relevant information. When one partner is being uncooperative, it can sometimes mean they are not being truthful and may be hiding relevant financial information. This dishonesty and lack of trust may scupper the entire mediation process.

For a successful divorce mediation both parties need to be well prepared. They need to have all the documents the mediator has requested and have a written list of their requests and concerns. Only once these are identified, can a successful process of negotiation begin and an amicable agreement at mediation be reached.

What Happens If We Can’t Reach An Agreement At Mediation?

The possibility of not reaching agreement on every point will always exist.

If that is the case for you, you first need to work out why it failed. You may find that agreement was reached on several points of dispute but not all. That is not the end of the world as only the unresolved issues will still need to be discussed, making the next mediation session or Family Court hearing much easier.

Perhaps emotions were the stumbling block and you may choose to try again on another day. Perhaps another mediator may just do the trick, or you can each use separate family lawyers to negotiate a final settlement.

If none of these options work, you will be left with no other choice but to go through the Family Court where a Judge will make the final decision.

Are you ready to start the divorce mediation process?

Find out more about our divorce mediation fees and book your free initial consultation with Ian today.