When There's No Settlement at Mediation?

In many states, including Illinois, divorcing couples with children are required by law to attend divorce mediation in an attempt to come to custody, financial and other child-related agreements. Some couples are able to find success by mediating, and all that’s left to do is for their attorneys to draw up an official agreement and submit it to the courts. However, while the process works for some divorcing couples, it is not uncommon for no settlement at mediation, and at that point, they begin the litigation process.

Possible Reasons for No Settlement at Mediation

In my experience, there are a multitude of reasons why mediation may result in no settlement. Here are 3:

1. Emotions and Egos of the Parents:

Nobody gets divorced because everything in their family life is going as they had planned, hoped or wanted. That’s why divorce mediation is often highly emotional, and can be fueled by feelings of resentment, distrust, and hostility. Though understandable, none of these emotions are helpful and they actively hinder the mediation process. Parents may get distracted by the emotions they are feeling about the other parent in mediation and are thereby unable to make sensible, rational decisions. Their expectations become unrealistic and motives are driven by negative feelings for their spouse.

2. Unwillingness to Listen and/or Compromise:

Parents may also reach no settlement at mediation due to both of them or one parent refusing to listen to what the other parent has to say or even consider a compromise. When this happens, the parents get too wrapped up in what they want. What ends up happening is that they stop considering what is in the best interests of their child(ren).

3. Unrealistic Expectations:

Parents sometimes attend mediation with the expectation that they are in the right and, once the mediator hears what they have to say, they will agree with them and the other parent will have to settle based on what the mediator said or suggested. This is not how it works. While the mediator will try to bridge some of the gaps between parties and question each parent’s position, they cannot tell a parent what to do, provide legal advice or force a parent to settle.

If there is no settlement at mediation, don’t be alarmed. Parents have a few options for how they can proceed, which are as follows:

1. Ask the Court for a Pre-Trial Conference:

The parents can request that the Judge conduct what is a called a Pre-Trial Conference. This is where each parent can present to the Judge the issues in the case and obtain a recommendation for settlement purposes. If the parties agree to the Judge’s recommendation, then a final agreement can be drafted and entered to resolve the case.

2. Other Remedies available through the Court:

If you can’t resolve the issues during a Pre-Trial Conference with the Judge, the parents will have the opportunity to request documents, request the appointment of a Guardian ad Litem or Child Representative, and petition the court to hear issues that have arisen. This is the start of the litigation process. It sounds long and intimidating and scary, but sometimes litigation can’t be avoided. The good news is, at any time during the litigation process, the couples can return to mediation and try to come to agreements again. This is explained in more detail in #3, below.

3. Return to Mediation:

Even if the first session failed and resulted with no settlement at mediation, there is nothing in the law preventing parents from attempting to mediate their matter again with the same or a different mediator. Some mediators are great for some cases and not great for others. If you think that the first mediator was not a good fit, doing an additional mediation session with a new mediator isn’t a bad thing. However, don’t forget that for mediation to be successful, the divorcing parties need to be willing to come to the mediation session with the goal of compromising.

4. Negotiate Directly with the Other Parent and/or the Attorneys:

Just because there was no settlement at mediation does not mean that the settlement negotiations stop there. Either directly between the parents or through their respective attorneys, the parents can continue to negotiate to try and reach settlement on some, if not all issues. This option is usually combined with the options above to try and resolve the matter as quickly and amicably as possible.

The good news is, even if there was no settlement at mediation, that does not mean that it was a complete waste of time. Mediation offers divorcing couples a better understanding of the other parent’s position and what they may do during any kind of future litigation. This will help each spouse and their attorneys know how far apart they are from an agreement and what arguments the other party might make during litigation proceedings.

Need More Information or Representation?

Do you need help during mediation or litigating your custody or divorce case? If you are looking to start or are going through a custody or divorce proceeding, and need more information regarding mediation and litigating your case in court, give The Law Office of Tiffany M. Hughes a call today at 773-893-0228 for a complimentary phone consultation. Our entire practice is solely dedicated to the area of family law. We are highly experienced and represent parents during mediation and to litigate their matters to obtain the custody judgment that is in the best interests of their child(ren).

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.