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If mediation has failed these are the next friendliest steps you should take:

  1. Try to work out why the mediation failed.
  2. Write down each person’s argument.
  3. Find out what each person wants.
  4. Negotiate, bargain or reason with the other side until you reach an agreement.

If a mediation fails, it can be extremely frustrating if one party is ready to settle or both parties were prepared to negotiate. In the rare case that mediation fails, there are still alternatives before you go to Court. Often working out why mediation fails will allow you to negotiate without going to court.

Take note of the positives

Even a failed mediation is a great learning process thus it’s important to step back, take a deep breath, and remember that not everything is lost. You know the other parties’ arguments, how they feel and what they want. This can make it all the easier to resolve the conflict.  Sometimes minor issues are resolved in the mediation, which means it’s not all bad.  It is very unusual for a couple to enter a mediation and not reach agreement on a single thing.

Put simply don’t give up on the process yet, so when mediation fails – what’s next?

Often the best thing to do is work out with your family lawyer why the mediation failed and how to fix it.

Are emotional issues to blame?

Mediation can sometimes bring out emotions that aren’t pleasant to experience. If the parties are clearly in emotional turmoil, and that is what is affecting the mediation process, it might be best to look at counselling. Counselling does not need to be done together, you can go on your own. The fact you are going to counselling might be enough to prompt the other party into doing the same. Once the emotional issues are dealt with, you can attempt to negotiate again, with or without a mediator.  You’ll be surprised what can be achieved with a clear head.

Lack of disclosure

If the mediation failed for lack of disclosure of financial documents, it’s best that both parties seek disclosure from each other and perhaps attempt to settle the matter again. If the other party doesn’t comply then you may discuss with your family lawyer whether you should go to court to seek orders for disclosure.

Were the parties too far apart

If the parties are too far apart, it might be best to reassess your position. There is usually a reason why parties are in such disagreement. Even if neither party wants to change position you still don’t need to go to court. You might discuss with your family lawyer whether you should consider arbitration. Arbitration is a much cheaper option than court.  In an arbitration, a third party (such as an experienced barrister) will make a decision and the parties will be bound by it.

Was there an intractable conflict

If the parties are in a high conflict that cannot be resolved, again it might be best to reassess positions. An experienced family lawyer will be honest with you and will be able to give you an objective opinion about how reasonable you are being. If the other party is the one being unreasonable, you may not be able to get them to agree to arbitration or another mediation, if that is the case, the next step might be to (unfortunately) file proceedings.


In summary, the next step after a failed mediation does not have to be expensive litigation. Your family lawyer should advise you on options to try and resolve the issue. Alternatively look at other forms of dispute resolutions such as arbitration where the parties might benefit from another party making decisions and is the less expensive alternative to a long and messy divorce.

If you have any other questions please contact us.

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