What If Mediation Fails?


In many conflicts, it is helpful to hire an attorney to represent your interests in a mediation rather than jumping straight into an expensive, time-consuming court battle. Mediation often helps both parties to resolve their differences outside of court, saving everyone concerned a lot of time, money, and emotional duress, and in most real estate contracts it is mandatory – fail to mediate and you lose the right to recover attorney fees even if you prevail in court.

It is common for one or both parties to become frustrated during the mediation process, throw up their hands, and quit. It can seem as if mediation is going nowhere because the other side is not listening or compromising at all. One or both parties may feel as though a judge will surely side with them once their stories are heard in court. So why waste time on this mediation process, when certainly “my argument is the ‘right’ one”?

The problem with that type of thinking is that what a judge hears in the courtroom is often filtered by the rules of evidence. One or both parties might imagine that the judge will hear their entire back stories, often supplemented by very personal emotional arguments to support their claims. What actually happens can be a much more bare-bones, basic presentation of the facts. In most cases, the time and place for telling your story and being heard is actually not the courtroom. It is during the mediation process that the parties have an opportunity to fully relate their sides of the story. Additionally, the mediator is trained to help the process along, to weed out the over-emotional responses or the under-valued argument.

For that reason, even if formal mediation fails, it can often be helpful to simply take a break and have the lawyers continue private negotiations, or negotiations with the assistance of the mediator. Everyone has a chance to cool off, regroup, and gain some perspective. Often after tempers subside, one or both parties may find themselves more willing to listen and compromise. If mediation seems to fail, it’s important to remember that moving on to court is not always the best alternative. A second attempt to compromise might be successful after everyone has taken some time off to reflect on the situation.

But mediation doesn’t solve every dispute. The mediation process can, and does, sometimes fail after repeated attempts. When this happens, it’s important to remember that the process is rarely a total failure. Most conflicts are complex and multi-faceted, and even if a final agreement was never reached, many smaller associated issues may have been hashed out and decided along the way. When the case does go to court, it may still be decided much more quickly due the fact that mediation has successfully stripped the conflict down to fewer issues which now need to be decided.


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