Deciding to enter mediation over a dispute means all parties involved agree to work with a neutral person (a mediator) to help facilitate the negotiation of an agreement that works for everyone. There’s no judge and often no lawyers. The people involved speak for themselves. A mediator hears both sides explain the issue, asks questions when clarification is needed, and helps guide everyone toward a conclusion that works for all individuals.
That’s the ideal outcome of mediation, but sometimes an agreement can’t be reached and parties leave mediation with the issue unresolved. So, what happens next, after mediation fails?
Failure is too harsh a word
Leaving mediation without coming to a mutually agreed upon solution to the dispute in question doesn’t necessarily mean it failed. While it wasn’t fully successful, chances are that during the course of mediation small issues related to the dispute were cleared up. This is proof mediation is helping your situation, which means it may be worth trying again.
Consider taking a step away from the mediation table to process what occurred during your session. Once emotions calm down, you may be able to see a way to an agreement that wasn’t apparent before. Stay in touch your mediator in case you’re able to come back a few weeks or months later to have a more constructive conversation.
If you feel like your mediator possibly contributed to your lack of resolution, it’s perfectly okay to try mediation again with someone different. There’s no penalty to revisiting the dispute in the same way, just with another person helping you to reach a solution. This is especially important to try if you feel like negotiating independently of the courts will yield the best results for you and all parties involved.
You can also try mediation from a different perspective. Revisit mediation, but from an evaluative approach. This is where the mediator takes on the role of a fictitious courtroom. They take into consideration all the facts and evidence of the dispute before predicting how a court of law would decide the matter. This gives you insight into how things could go should you decide to pursue the issue in court. It may not swing in your favor, which can lead to you being more open to giving mediation another try.
Why mediation doesn’t always work
If additional attempts at mediation still don’t yield a result, it’s important to take a look at what’s causing the lack of success. Ask yourself these key questions to establish whether or not mediation is going to work for you:
- Is there a lack of trust and cooperation between parties that can’t be overcome?
- Is there an unwillingness to compromise in any sense?
- Is the mediator unable to prevent conflict between involved parties?
Issues like these present considerable speed bumps to a successful mediation, and it may be time to consider alternatives to getting your dispute settled.
Taking your dispute to court
After exhausting all attempts at mediation, the next step is going to court. A judge will review your case and make an official decision. Disputes that have gone through mediation are still eligible for court, however anything discussed or that occurred during mediation remains confidential and can’t be admitted as evidence. Essentially, you’ll be starting fresh in court, as if mediation never occurred. If you didn’t have an attorney assisting you during mediation, at this stage, you should find one experienced with your particular situation to help you navigate the legal process.
While it’s guaranteed a decision will be reached once you take your case to court, it’s often a more stressful environment where negative feelings can amplify due to the setting. Mediation is more like a neutral conversation whereas being in court puts you on one specific side of an issue. It’s important to take these factors into consideration before shifting your dispute into litigation.
The benefits of finding the right mediator the first time around
Because mediation can lead to faster results and less overall costs, it’s often a good option to try first when involved in a dispute. Select a mediator who keeps control over the conversation to move it along, listens to both sides, and focuses on realistic outcomes. Mediation services at The Patterson Cozzo Law Firm give you the power to make your own decisions