What Happens if Mediation Fails?

Not all couples who reach the decision to divorce are furious with one another. Some simply come to the conclusion that, for whatever reason, their marriage is no longer working and they would be happier living apart. Nevertheless, these couples may still disagree on certain issues that need to be settled, such as who should have primary custody of their children or whether one spouse should retain ownership of the marital home or it should be sold and the assets divided equitably. These couples, so long as they are focused on reaching an agreement, may choose mediation rather than traditional divorce in order to resolve these outstanding issues.

But what happens when, despite good intentions at the start, negotiations go awry?

It’s unfortunate, but sometimes mediation does not lead to an acceptable settlement — at least not for both spouses. Since mediation is wholly voluntary, either spouse can withdraw at any time throughout the process, including at the end when an agreement is drawn up that one or both spouses reject. At this point, the choices are few:

  • Try to work out an agreement with your spouse on your own
  • Wait for a while and then attempt mediation again
  • Hire a collaborative lawyer to avoid litigation
  • Hire a lawyer and proceed with traditional divorce through the New York court system

With regard to the first option, it seems unlikely that you will now succeed in working out your differences wholly on your own if a neutral mediator couldn’t help you reach a mutually-acceptable agreement.

At this point either a collaborative attorney or a traditional family law attorney who knows the ins and outs of the New York court system will be necessary to move forward with a divorce.

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