Mediation is a process where two parties negotiate and try to reach an agreement with the aid of a neutral mediator. It’s a well-established and useful alternative to legal proceedings, one that can save you time, money, and stress, and preserve your relationship with the other party. However, sometimes the two sides cannot come to a satisfactory resolution, no matter how hard they try. We’ll explore what happens when mediation is unsuccessful and what your next steps should be.
Impasse in Mediation
If both parties in mediation are unable to find a middle ground after several attempts, the process reaches an impasse. This occurs when both sides’ positions become increasingly polarised with no apparent possibilities for a negotiated settlement. If you reach an impasse in mediation, you need to understand that this doesn’t necessarily mean you have to give up. In some cases, taking a break and then returning to the discussion can yield new opportunities to find a resolution. However, in other cases, the impasse might be too significant to overcome, and it’s time to move on to other options to resolve the dispute.
One of the most common next steps after mediation has failed is to resort to litigation. If there was a written agreement to mediate before the parties started the process, then the parties are contractually obligated to mediate before initiating legal proceedings. If there is no agreement to mediate, either party may initiate legal proceedings. This option has the advantage of having a legally binding resolution. However, this route also comes with several disadvantages, including increased costs, prolonged resolution time, and a win/lose outcome where one party wins, and the other loses.
Arbitration is another form of alternative dispute resolution that could result from the failure of mediation. It is similar to litigation but is less formal and often less expensive; parties will have a final decision maker. In this case, the arbitrator hears and evaluates the evidence presented and makes a legally binding decision. Although arbitration maintains a win/lose outcome, parties still have some element of control as they have the ability to select the arbitrator. Unlike other legal proceedings, the decision in arbitration is final, binding, and can be entered as a court judgment.
Although the objective of mediation is to arrive at a negotiated agreement, this may not happen. But all is not lost, as parties can go back and discuss the options available informally, away from the formal mediation process. Working on a settlement prior to litigation or arbitration can reduce costs. It also gives parties more control over the outcomes as well as giving them an opportunity to craft and customize their settlement.
Advantages of Mediation
- Confidential: Mediation is a confidential process, and all communication within mediation remains private.
- Cost-effective: Compared to litigation, mediation is generally cheaper as it involves fewer fees and legal costs.
- Voluntary: All parties involved in mediation must agree to it, and no one can force any other person to participate.
- Time-efficient: Mediation can achieve a resolution in a much shorter timeframe compared to litigation or arbitration.
- Empowering: Mediation allows all parties involved to have a voice and takes into account the interests of all parties.
A Resolute Conclusion to Your Journey
In conclusion, the implications of unsuccessful mediation should not be underestimated. When mediation fails, parties may face prolonged disputes, increased costs, strained relationships, and potential escalation to litigation. Therefore, it is essential to approach mediation with a dedicated and open mindset, ensuring that all parties actively engage in the process and work towards a mutually agreeable resolution.
At Rhino Mediation, we understand the significance of successful mediation and are committed to guiding parties towards positive outcomes. Our experienced mediators strive to create a supportive and productive environment for resolving disputes effectively. Contact us today to learn more about our mediation services and how we can assist you in finding successful resolutions.