When family mediation fails to produce results
The best way to resolve a divorce or family dispute is, of course, to reach an agreement with another party, whether that agreement is about agreements for just about any dependent children, finances, as well as property.
And one of the best ways to reach an agreement is through mediation , in which a trained family mediator will assist the parties in reaching an agreement that is both workable and fair to all.
Nonetheless, despite the fact that mediation has been used to resolve family disputes for more than two decades, many people experiencing family breakdown remain sceptical of it, doubting that it will be suitable for them or that it will work.
Family mediation is, in fact, appropriate in the majority of cases. As every experienced family lawyer would then attest, numerous cases settle by agreement despite the fact that it appears unlikely at the outset. Similarly, with the assistance of an expert mediator, mediation could be successful even in the most unlikely of circumstances.
Nonetheless, despite our enthusiasm besides mediation as a method of resolving family disputes, we acknowledge that it is not always appropriate, and that it is not always successful, despite our best efforts.
When mediation is not an option
Family mediation is not appropriate in a variety of situations. Here are a few examples of the most common:
Coercion/refusal on the part of the other party to mediate – Mediation is entirely voluntary. If one party does not want to participate in mediation, they cannot be forced to do so. Mediation is usually not appropriate when one party feels compelled to attend.
Domestic abuse – If there have been any incidents of domestic abuse or if there are any outstanding allegations of abuse, mediation is usually not appropriate.
Cases that are urgent – If the case is urgent for any reason, it is usually preferable to go straight to court rather than to mediation.
Bankruptcy – If the dispute is about money and either you or the other party is bankrupt, mediation is not an option.
Involvement of social services – If you are currently involved with social services due to concerns about the safety and well-being of your child or children, mediation will not usually be appropriate.
Acrimony – For mediation to be successful, the parties must cooperate to some extent. If this is simply not possible due to strong animosity between the parties, mediation seems to be unlikely to also 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 being the ‘dominant’ one for whatever reason, and the other being the ‘subservient’ one. Again, the mediator will attempt to resolve this issue; however, if they are unsuccessful, mediation may not be appropriate in such cases.
Previous (recent) mediation failure – Finally, mediation may not be appropriate in cases where it has been attempted but failed in the recent past.
When mediation is ineffective
Mediation is not always successful, despite the best efforts of an expert mediator. The mediator cannot compel the parties, or one of them, to reach an agreement, no matter how appropriate the mediator believes that agreement to be.
The mediation may be terminated if one or both of the parties withdraw. It may also end if the mediator believes there is no reasonable chance of the parties coming to an agreement, for example, because the parties are too far apart or one of them is refusing to negotiate.
In such a case, the case will have to be resolved by the court. It should be noted, however, that mediation can be “partially successful,” meaning that some issues are agreed upon between the parties, reducing the number of issues before the court.
It should also be noted that, unless both parties agree otherwise, everything discussed in mediation is strictly confidential. The court will be unaware of anything said or done during the mediation.
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