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What happens if we cannot reach a divorce agreement during mediation?

While mediation is a good way to resolve a divorce, it is by no means a guaranteed success. Sometimes mediated divorces break down, leaving divorcing spouses without a completed divorce agreement to take to court to finalize their separation. When this happens, there are three paths that you can go down: Litigation, try another mediation, or independent negotiation. Alternately, sometimes spouses benefit by simply taking a break from mediation, then returning several months later after heads have cleared.

The most common path to take after an unsuccessful mediation process is litigation. Mediation typically helps resolve the relatively uncontested issues in your divorce at the outset. This leaves the more contentious divorce issues to be wrestled with, and this can feel so overwhelming that the mediation process might not seem up to the challenge. This is when many spouses opt out of the mediation process for the more traditional divorce trial, where they believe a judge will break the logjam by deciding difficult issues on behalf of the spouses.

Some divorcing spouses leave one mediation process for another. This can happen when one spouse has become disillusioned with the mediator, often because they think the mediator is biased or is not listening or is not moving quickly enough. Because mediation is totally voluntary, either spouse can end the process at any time.

Finally, some spouses elect to try resolving their issues on their own, independently of the courts or any mediators. This can happen when the mediation process goes so smoothly that the spouses become confident in their ability to resolve their own differences without a referee between them.

Regardless of what happens after a mediation process that did not produce a finalized divorce agreement, the mediation itself was not necessarily unsuccessful. Even incomplete mediations often narrow down the issues that still a resolution, moving you towards the divorce agreement that you and your spouse are looking for.

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