When Divorce Mediation Doesn't Work: What Happens Next?

Mediation is often successful. Experts say about 80% of people who enter mediation leave with an agreement. But sometimes, couples can't agree, even when they're committed to the mediation process. 

You can still get the divorce you want, even if your mediation fails. But you will need to take a few extra steps in response. 

How does divorce mediation work? 

Divorce mediation is a conversation between two parties who agree to work together on a common solution that benefits them both. While mediation meetings are often intense, they're shorter than divorce trials. 

The mediator facilitates the conversation and brings up one topic at a time. The mediator introduces the issue, and both parties outline their ideal outcome. Then, the group works together to close the gaps and find a solution. 

At the end of a successful divorce mediation, couples document their agreement in forms that can be filed with the court. In some cases, this is the only in-person meeting couples hold to come to appropriate divorce terms. 


Why does divorce mediation fail?

While mediation is often successful, it doesn't always work. While every couple is different, negotiations often break down due to one of three common reasons. 

1. Parties won't negotiate

Mediators can give you information about laws and procedures, but they can't provide legal advice. You must find the right solution with your partner, which involves give and take. 

Mediators can work with irrational or unmovable parties, and often, they can make difficult situations easier to discuss. But if one person makes an unreasonable demand the other person can't live with, the discussion will stop. 

2. Couples can't speak openly 

The mediation process can help couples repair their working relationship. If you share custody of your children, mediation could help you listen to your partner and collaborate on solutions to benefit your new family arrangements.

But mediation only works when couples can clearly articulate what they want, what they don't want, and why. A power imbalance, history of abuse, or underlying relationship damage could keep you from bargaining with your spouse to get what you want.

If one side attempts to collaborate and the other party doesn't respond at all, the mediation will fail. Both sides must be willing to speak up and take risks. 

3. Mediator chooses a side 

Mediators are trained professionals, and in some cases, they move through an employment screening process before they take on clients. Most mediators are trustworthy and capable of steering difficult conversations. 

But sometimes, a mediator seems to side with one party over another. You might feel pressured to accept a solution that isn't right for you. And you might not feel comfortable explaining the issue to someone who seems aligned with your ex. 

If your mediator doesn’t seem like a neutral third party, you won’t speak openly and negotiate carefully. Mediation can fail as a result. 

What happens when divorce mediation doesn’t work?

Divorce mediation should help couples settle disagreements. When the process fails, both sides still don't agree, and the divorce can't move forward. Two options exist. 

1. Try again

If you feel like your mediator caused problems, you could start the process over with someone new. A different professional could handle the conversation with more skill and tact, allowing you and your partner to come together and collaborate on your divorce. Look for a mediator who has a good amount of experience in situations like yours.

2. Go to court

Divorce cases allow you to argue your case in front of a judge who can rule for or against you. A judge's decision can be overturned on appeal, but often, couples accept the outcome of their cases and move forward with their lives. 

You must hire a lawyer to get started. That person can fill out paperwork, set a court date, gather witnesses, and defend your case before the judge. Prepare for many months of preparation before your case begins. 

Six questions to ask to help you prepare 

Should you end your divorce through mediation, or should you head right to court instead? While every situation is different, answering a few simple questions could help you understand which option is right for you. 

Ask yourself these questions:

  1.  Am I ready to collaborate with my partner, giving a little to get what I want in return? Or do I want to crush my partner and "win" in court?
  2.  Can I speak openly and freely in front of my partner during a negotiation? Or is it better to allow a lawyer to speak for me?
  3.  Is my partner willing to collaborate on solutions with me? Or is my partner no longer speaking to me at all and won't respond to my requests for mediation?
  4.  Do I have the money and patience for a long court case? Or is it better for me to save time and money in mediation?
  5.  Do I have a lot of issues to uncover that might involve legal precedent? Or are there just one or two small issues that need to be untangled in a mediation conversation?
  6.  Do I want to learn more about how to communicate effectively with my partner? Or do I want to avoid having even one more face-to-face talk?

Whether you choose mediation or a court case, know that you can end your marriage with grace and dignity. Either option is valid and will get you to the end result of ending your marriage. 


How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute. (December 2022). Harvard Law School. 
FAQs About Family Mediation. Academy of Professional Family Mediators. 
When Is Mediation Appropriate? United States Department of Commerce. 
Questions and Answers About Mediation. U.S. Equal Employment Opportunity Commission.

Divorce Specialists
After spending years in toxic and broken family law courts, and seeing that no one wins when “lawyer up,” we knew there was an opportunity to do and be better. We created Hello Divorce to the divorce process easier, affordable, and completely online. Our guiding principles are to make sure both spouses feel heard, supported, and set up for success as they move into their next chapter in life.