When family mediation doesn’t work

When family mediation doesn’t work

The best solution to resolving a divorce or family dispute is of course by agreeing matters with the other party, whether those matters relate to arrangements for any dependent children, finances, or property.

And one of the best ways to sort out matters by agreement is through mediation, whereby a trained family mediator will help the parties come to an agreement, which is both workable and fair to all.

But, despite the fact that mediation has been used to resolve family disputes for more than twenty years, many people going through family breakdown still have reservations about it, doubting that it will be suitable for them, or that it will work.

In fact, family mediation is appropriate for the vast majority of cases. As any experienced family lawyer will attest, many cases settle by agreement despite it appearing at the outset that that would be unlikely to ever happen. Similarly, with the help of an expert mediator, mediation can be successful in the most unlikely cases.

However, despite our enthusiasm for mediation as a method of resolving family disputes, we do acknowledge that sometimes it is not appropriate, and sometimes, despite best efforts, family mediation doesn’t work.

When mediation is not appropriate

There are a number of situations in which family mediation is not appropriate. Here are some of the most common:

Coercion/other party unwilling to mediate – Mediation is purely voluntary. If one party does not wish to enter mediation, then they cannot be forced to do so. Mediation will not usually be appropriate where one party feels that they have been coerced to attend.

Domestic abuse – Mediation will not normally be appropriate if there have been any incidents of domestic abuse, or if there are any outstanding allegations of abuse.

Urgent cases – If the case is urgent for any reason then it will usually be more appropriate to take the matter straight to court, rather than go to mediation.

Bankruptcy – If the dispute is about money and you or the other party is bankrupt then mediation will not be appropriate.

Involvement of social services – Mediation in relation to arrangements for children will not usually be appropriate if you are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.

Acrimony – To be successful, mediation obviously requires a measure of cooperation between the parties. If this is simply not possible because of high levels of animosity between the parties then mediation is unlikely to be appropriate, unless the mediator is able to address the issue.

Power imbalance – In some cases there is a ‘power imbalance’ between the parties, with one party, for whatever reasons, being the ‘dominant’ one, and the other the ‘subservient’ one. Again, the mediator will try to address this issue, but if they are not successful then mediation may not be appropriate in such cases.

Previous (recent) mediation unsuccessful – Lastly, mediation may not be appropriate in cases where it has been attempted in the recent past, but has not been successful.

When mediation fails

Sometimes, despite the best efforts of an expert mediator, mediation is not successful. The mediator cannot force the parties, or one of them, to agree a settlement, no matter how appropriate the mediator may consider that settlement to be.

The mediation may come to an end because one or both of the parties withdraws. It may also come to an end if the mediator does not consider that there is any reasonable likelihood of the parties reaching an agreement, for example because the parties are too far apart, or because one of them is failing to negotiate.

In such a situation then the case will have to be sorted out by the court. It should be noted, however, that mediation can be ‘partly successful’, i.e. some issues are agreed between the parties, reducing the matters that the court has to adjudicate upon.

It should also be noted that, unless agreed otherwise by both parties, everything discussed in mediation is confidential. The court will not be aware of anything that was said or took place during the mediation.

Further information

If you would like more information about family mediation and how it works, see here.