While mediations help many people with legal disputes, they do occasionally fail. When a mediation does not go well, participants should focus on what to do next.

Why Would a Mediation Fail?

A mediation “failing” usually means that the people participating in the mediation do not reach a resolution of their legal dispute. Mediations could fail to result in a resolution for several reasons, including:

  • One or more of the parties are not cooperative
  • The parties fundamentally disagree on a reasonable resolution
  • The parties fundamentally disagree on the facts of the dispute
  • One of the parties has financial problems that would affect a settlement
  • The parties get close to a resolution but ultimately the day ends before making a final deal

When the mediation session ends before the parties can make a final deal, the mediator may schedule follow-up phone calls or emails to finalize the settlement. Some mediators charge an additional fee for this service, while others include follow-up after the mediation in the original cost.

What Should Parties to a Mediation Do If It Fails?

If it becomes clear during a mediation session that the parties will not reach a resolution, a few events could happen. One or more of the parties may get up and leave. Alternatively, the mediator may call off the session. Finally, it may get late in the day and everyone mutually agrees to end the session.

When the participants are amicable, the mediator may suggest that the parties work together after the mediation to discuss settlement. The mediator also could schedule follow-up herself with the parties. If this happens, it is a good idea to leverage the effort you spent at the mediation and try to resolve the case.

When the participants were not amicable during the mediation, reaching a resolution after the mediation session can be difficult or impossible. Instead of settling, the parties may need to pursue arbitration or litigation in court.

If you are in this situation, you may want to continue building your case or defense in the meantime. For those who do not have lawyers, now is a good time to find a lawyer. You may need to file a lawsuit or respond to one sometime soon, so legal representation will be helpful.