WHAT CAN I DO IF MEDIATION BREAKS DOWN?

By Solent Family Mediation |
July 4, 2022
mediation breaks down

When family mediation breaks down.

Obviously, the best method for resolving a divorce or family disagreement is to reach an agreement with the other party, regardless of whether the issues at hand pertain to child custody, finances, or property.

And one of the greatest methods to resolve disputes amicably is through mediation, in which a skilled family mediator assists the parties in reaching a practical and equitable arrangement.

However, despite the fact that mediation has been used to address family disagreements for more than two decades, many individuals experiencing a family breakup continue to have doubts about its effectiveness and suitability.

Family mediation is appropriate in the great majority of situations. As any seasoned family lawyer will confirm, despite first indications to the contrary, a large number of cases resolve by agreement. Similarly, with the assistance of a skilled mediator, mediation can be successful in the most improbable situations.

Nevertheless, despite our enthusiasm for mediation as a means of settling family issues, we recognise that it is sometimes inappropriate and that, despite our best efforts, occasionally mediation breaks down.

When mediation is not suitable

There are several instances where family mediation is inappropriate and mediation breaks down. Here are several of the most prevalent:

Coercion/opposition to mediation – Mediation is entirely voluntary. If a party is unwilling to participate in mediation, they cannot be compelled to do so. In most cases, mediation will not be acceptable if one party feels pressured into attending and then mediation breaks down.

Abuse within the home – Mediation is typically inappropriate if there have been incidences of domestic abuse or if allegations of abuse remain unresolved.

Urgent cases — If the case is urgent for whatever reason, it is typically preferable to proceed straight to court rather than engage in mediation.

Bankruptcy: If the dispute is about money and you or the other person is bankrupt, mediation will not work.

Involvement of social services — If you are currently involved with social services due to concerns for the safety and well-being of your child or children, mediation regarding arrangements for your child or children will often not be appropriate.

Acrimony – For mediation to be successful, there must be a degree of collaboration between the parties. If this is impossible because of a high level of hostility between the parties, then mediation is unlikely to be appropriate unless the mediator can address the issue.

In some instances, there is a “power imbalance” between the partners, with one being “dominant” and the other “subservient” for whatever cause. Again, the mediator will attempt to resolve this issue, but if unsuccessful, mediation may not be appropriate in such situations. Mediation breaks down if it is not done in a fair way.

Previous (recent) attempts at mediation breaks down — Finally, mediation may not be appropriate in situations where it has been used recently without success.

If Mediation Fails

Despite a skilled mediator’s best efforts, mediation is not always successful. No matter how appropriate the mediator believes a particular solution to be, he or she cannot compel the parties, or any of them, to accept it.

If one or both parties withdraw from the mediation, it may be terminated. It may also stop if the mediator does not believe the parties have a reasonable chance of coming to an agreement, for instance since they are too far apart or since one of them is refusing to negotiate.

In such a circumstance, the case must be resolved by the judge. It should be noted, however, that mediation can be “partially successful,” meaning that some issues are resolved between the parties, hence lowering the number of questions that the court must decide.

In addition, unless both parties agree otherwise, everything said during mediation is confidential. The court will have no knowledge of anything said or done during the mediation.

Solent Family Mediation have expert and professional mediators who are ready to help with any issue you may be having – Call now for more information.