Reasons Divorce Mediation Fails and Alternatives to Consider

Are you currently involved in divorce mediation? Everything seems to be moving along smoothly, but you are concerned about what could happen if that changes. Unfortunately, divorce mediation is not always successful. You should know what could happen if your divorce mediation does not work out - you should know all of your options. The more you know about the reasons divorce mediation might not work and divorce mediation alternatives, the more confident you will be if you encounter any obstacles during mediation.

In this article, you will learn:

  • What happens when divorce mediation fails
  • Common culprits when divorce mediation does not work
  • Alternatives to divorce mediation
  • And much more

What Is the Purpose of Divorce Mediation?

To understand why divorce mediation may sometimes not work, it's essential to talk about the purpose of divorce mediation.

In contrast to litigation, mediation allows a couple to discuss the specifics of their divorce with a specially-trained, neutral third party. It occurs behind closed doors at a neutral location without having to repeatedly appear in court.

Whether you are ending your marriage or considering it, mediation is an option you can explore at any stage of the divorce process.

The process is usually:

  • Less stressful
  • Less costly
  • Quicker; and
  • Easier to move past for everyone involved

Mediation provides a more gentle, and often more productive approach to navigating a divorce and offers some significant advantages over litigation. It is often:

  • Less stressful
  • Less expensive
  • Quicker
  • More flexible
  • Private and confidential
  • Can be more child-centered
  • More peaceful; and
  • Personal and specific to your case - you and your spouse / significant other can agree upon solutions that a Court may not be able to order.

When Divorce Mediation Doesn’t Work.

Despite its collaborative nature and neutrality, divorce mediation is not always successful. There are a variety of reasons why it may fail.

Let’s take a look at a few of the common culprits:

  • Domestic abuse — this is a non-starter — if there is domestic abuse, mediation is not a realistic alternative. Seek court intervention and other help if needed.
  • High emotions and anger — If one or both parties are consumed by emotions and anger, it may be difficult to set those emotions aside to reach an agreement. But not impossible. We often refer to such cases as "high conflict". Such cases require patience and that each party have a good and knowledgeable attorney to provide assistance.
  • Domineering or intimidating spouse — An overbearing or intimidating spouse who is unwilling to participate in the process in good faith will make it difficult to reach an agreement. Again, such cases may fall into the "high conflict" category
  • Lack of preparation — preparation and full disclosure are important to any legal matter. Mediation is no exception. With proper preparation, the mediation process can be very efficient. However, without that preparation, time will be spent during mediation on what should have been completed in advance, often slowing the process, and increasing costs.

Mediation doesn't mean you proceed without legal counsel. Although you may not have a lawyer sitting with you during mediation sessions, you should still have a lawyer advise you about your rights before and after sessions, as well as before you enter into a final settlement agreement.

At Winter & Grossman, we bring over 20 years of experience in family and matrimonial law to our mediation practice.

Are you interested in learning more? Please get in touch with us today.

What Happens if Mediation Isn’t Successful?

Divorce mediation is a process; therefore, several sessions will likely be required to make significant progress.

If a global mediated settlement is not successful, there are other options.

5 Alternatives to Divorce Mediation


If parties cannot agree on all issues, mediation can be focused on limited issues such as custody, or support, or as to specific assets. The parties can leave other issues to be addressed at a later date or by the Court. Parties often seek to leave the children out of the legal process and may wish to resolve custody and parenting rights outside of court to avoid having an attorney for the child/children, forensic evaluations, and possibly having the child/children even speak to the Court. However, the parties may disagree on financial issues and wish to have their day in court as to those issues.


Mediators are trained to help parties reach a consensus on issues previously unresolvable.

If you believe your mediator is biased or simply ineffective with a party and not "getting through," you may want to seek another mediator.

Choosing a new mediator might be the best option in this situation, keeping in mind that both parties need to be invested in this process.


If the mediator was able to clarify the disputes but not fully resolve them, negotiate through the attorneys to try to finalize an agreement, even on limited issues.

For example, a mediator may have helped the pair create a parenting plan but may not have helped the parties finalize the details or address the financial issues.

Negotiations between the lawyers is the next step after the initial involvement of the mediator and be done simultaneously as well.


The collaborative divorce process is an alternative method of resolving divorce disputes. It is a legal divorce process in which the terms of a divorce are negotiated without mud-slinging or conflict in court.

Here, the spouses work with their lawyers and with other professionals (i.e., Financial Planners, Psychologist) to reach an agreement on the critical terms of a divorce.


If mediation has failed and none of the above alternatives have helped the parties reach a final agreement, litigation is the only other alternative for the parties to reach a conclusion. Please keep in mind that parties sometimes engage in mediation while litigating to avoid delays. This can be more costly and from time to time the processes are at odds with each other - mediation being less adversarial.

A judge must resolve issues if the parties cannot do so.

Since trials are expensive and time-consuming, it is common for divorce and family law cases to settle before or even during trial. Because the parties have a better understanding of family finances and dynamics, settlements are preferable. However, a judge will still make the decisions when the parties cannot.

Winter & Grossman: The Place to Turn for Mediation Services or When Divorce Mediation Fails

People do not get married and have children with an expectation to separate or divorce. But, it happens.

If you find yourself in this situation and in need mediation or matrimonial and family law representation, Winter & Grossman is a New York-based law firm that can help.

We want to discuss the details of your situation to help guide you to help you decide what is best for you and your family. We aim to assist each client through one of the most difficult times in life and as efficiently as possible with compassion and understanding.

Please feel free to contact us at 516-745-1700 to arrange a consultation.