What to do after an Unsuccessful Mediation?

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Hello and welcome to our show 60 Seconds with Sergio.

I am your host, Sergio Cabanas, Attorney-at-Law here in Florida.

Thank you for joining us today.

Today’s question is: Sergio, I have a divorce, or a Family Law matter, where we attended a mediation but it wasn’t successful.

What should I do now?

Well, first let’s be clear on what a mediation is.

A mediation is basically a meeting where all the parties get together, to meet with an independent, impartial third party, known as a mediator.

The purpose of the mediation is discuss ways in which your case can be settled out of court, without any further litigation.

Most Family Law cases, including divorce cases, settle before trial.

Often at mediation.

Of course, there are cases that do not settle despite the mediation.

That’s what we call an impasse.

If you find yourself in this situation in an impasse situation, don’t lose hope.

To me, there’s no such thing as a bad mediation because it’s a valuable resource of information for making the best decisions and achieving the best results possible in your case.

When a case does not settle at mediation, I usually write out each of the issues that were discussed at the mediation, along with the other side’s argument.

Then I analyze the issue to determine the likelihood of the judge ruling in my favor, versus in favor of the other party.

And I put the percentage of success of each of these issues if the case goes to trial.

For example, let’s assume you have a divorce case and one of the issues is whether a house is considered a marital asset, which must be sold with the proceeds divided between the spouses, versus a non-marital asset that really belongs to one of the spouses and is not subject to a marital division.

During the mediation, I then document each side’s argument on that particular issue.

Then I put a percentage of success on the likelihood that the judge will rule on that issue one way or the other.

This exercise helps me make an intelligent decision on the next steps.

Including whether to take the case to trial, or redouble your efforts to settle.

Of course, it’s important to have an experienced attorney guide you through this process to give you the information you need to make the best decision possible.

If you find that there’s a high probability of success, then you know you’re making the best decision on going to trial and investing your time, money and effort, in a trial.
You then know that the trial is the best chance of reaching the optimal results in your case.

On the other hand, if you feel that the probabilities of success are not good, you should continue to negotiate with the other party, perhaps considering another mediation to settle your case.
Or, at least consider a partial agreement on those issues where you have the low probabilities of success, so that you can have a trial on those issues where you have a higher probability of success.

Otherwise, the only remaining strategy is to prepare for trial by getting whatever information and evidence you need and going to trial.

I hope this short video provided you at least some guidance, on what you can do when a mediation is unsuccessful.

Thank you again for joining us today.

And as always, stay informed so you can stay strong.

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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

Divorce & Mediation Law Firm | Cabanas Law Firm
18503 Pines Blvd, Suite 301
Pembroke Pines, FL 33029
(954) 447-2580


Sergio Cabanas, Esq. founded the Cabanas Law Firm in 2006 and provides Divorce and Family legal services, as well as Estate Planning, to ensure his clients have planned for their newly single life and are protected after their divorce. He began his career in law in 1992 as a prosecuting attorney at the Broward County State Attorney’s Office, then continued his litigation track as an insurance defense attorney defending medical professionals against medical malpractice claims and expanded into disability and life insurance claims. Sergio is a Certified Mediator registered in the Supreme Court of Florida and a frequent speaker in the community about the importance of Estate Planning to keep families out of probate court and to prepare essential instructions in the event of disability or incapacity.