What Happens if There Is No Resolution in Mediation?
Alternative dispute resolution, or ADR, is an outside-of-court process to seek a solution to a dispute without the length and cost of a courtroom confrontation. In point of fact, most individuals and businesses seek to avoid courtroom litigation, so much so in fact that more than 90 percent of civil lawsuits are settled outside of court.
If you’re contemplating or already involved in a divorce in or around Syracuse, New York, contact me, Nancy L. Giardina, Esq. For more than two decades, I have helped individuals and families resolve their divorces through collaborative methods, and I am also an experienced mediator in family and elder law situations. My practice also covers clients throughout Onondaga County, Madison County, Oswego County, Cayuga County, and Cortland County.
The Mediation Process
Mediation is a less formal method of alternative dispute resolution. Say you are a couple contemplating or entering divorce and you want to avoid the courtroom costs and dramas – and keep everything private in the process – then you can try a collaborative divorce by working together, with a mediator to guide you, on resolving all issues.
If the collaborative approach hits a stalemate, then mediation is the next logical step. The mediation process generally follows these steps:
Making the Decision: If you're a couple considering divorce and want to avoid courtroom drama while keeping everything private, you might decide to try a collaborative divorce. But if this approach isn't working, mediation is often the next step. This could be a decision that you both make or one that's ordered by the court.
Preparation: Once you've decided to try mediation, it's time to get ready. This stage is similar to the discovery phase in a civil trial. You'll gather all your facts and evidence to support your side of the dispute.
Meeting the Mediator: Then, you'll meet with the mediator in an informal setting. Since both parties are already familiar with each other in a divorce mediation, there's no need for introductions. You'll just lay out the issues at hand.
Negotiation: After that, the negotiation process begins. The mediator will meet with each party separately to understand their demands or goals. They'll then discuss with each party where there might be room for agreement and where things could get tough.
Closing: The final stage is when the mediator presents a plan for a divorce settlement. But remember, this plan isn't binding unless both parties agree to it. If you both agree, it becomes binding and is presented to the court for approval. It then becomes subject to court orders.
It's worth remembering that the success of mediation largely depends on the willingness of both parties to negotiate in good faith. While mediation cannot guarantee a perfect solution, it often leads to more satisfying solutions than court-ordered decisions.
What Happens When There Is No Resolution?
If there is no resolution, you generally have two main options:
You can continue to negotiate with the help of a mediator or on your own. It is not uncommon for mediation to be used more than once to arrive at a mutually agreed-upon resolution. Even repeated mediation is often cheaper than going to trial, and less emotionally draining as well. A failed mediation can thus be a springboard for other forms of negotiation leading to resolution, perhaps a judicial settlement conference or just more attempts at negotiating a collaborative divorce.
You can ask a court to make decisions about the parts of your divorce that you can't agree on. If you do end up going to court, remember that mediation sessions are confidential. Neither party is allowed to use anything learned during mediation during a trial. Both federal and state legislation protect the confidentiality of mediation sessions.
No matter what path you take, it's important to understand the process and ensure that you have access to experienced legal counsel who can help guide you through it. With their assistance, you can feel confident that both parties are getting a fair outcome in their divorce settlement.
Pros and Cons of Failed Mediation
The pros and cons of failed divorce mediation can be significant. On the pro side, even if the mediation did not result in the desired resolution, it can provide valuable insights into the other party's position, helping you to understand their priorities and potentially paving the way for future negotiations. Furthermore, it can save time and money compared to going to court, even if it doesn't result in a complete agreement.
On the con side, however, failed mediation can lead to increased tension and hostility between the parties, potentially exacerbating the conflict. This could make future negotiations more difficult. Additionally, the time and money invested in the failed mediation process could be seen as wasted if the parties ultimately need to go to court. Lastly, it could delay the final resolution of the divorce.
Find the Solution That Works
If you’re in or around Syracuse, New York, and you’re contemplating or already commencing divorce proceedings, reach out to me, Nancy L. Giardina, Esq., immediately. I can work with you on a collaborative divorce or conduct mediation for the two of you to reach a settlement on your own and thus avoid the costs and public exposure of a courtroom battle.