If the parties involved in a dispute cannot reach an agreement through mediation, they must take an evaluative approach. During this time, the mediator will act as if they were in a courtroom, considering all the evidence that would be presented if the matter had gone to court. Even if mediation fails and no agreement is reached, the parties still have the option to take the matter to court. The parties do not waive their right to litigate if they choose to first resolve the dispute through mediation. However, it is important to keep in mind that this process could be more expensive, as you would have to pay for both the mediation and litigation processes.
In addition, legal fees could be higher and the dispute could take longer to resolve, as you would lose control of the dispute once the judicial process begins. If negotiations are still ongoing between the parties after mediation, do not hesitate to involve the mediator further in these settlement talks. Sometimes, the mediator can influence third parties such as lien holders, surrogacy companies, and others to help facilitate a post-mediation agreement. Additionally, if a case isn't resolved in the original mediation session, it may be best to have a second or third mediation session. Complex cases with multiple parties often require two or three mediation sessions before a resolution can be reached.
The lack of an agreement in the first mediation should not be seen as a failure, but rather as the first step on the road to resolution. If court-ordered mediation fails, you still have the right to go to trial and litigate a decision. Although parties involved in emotional mediations may think that litigation is preferable, this is usually not the case. Mediation can only be conducted with the parties and their lawyers; however, most of the time it is done with the help of a court-appointed mediator. Furthermore, after a failed mediation session, do not hesitate to contact the mediator to request a “mediator proposal”.Usually, during a mediation process, the mediator makes his own assessment of how a case should be resolved.
If an agreement cannot be reached during the mediation session, sometimes a proposal from the mediator after mediation can lead to an agreement. It is beneficial to consider the differences between mediation and litigation, as well as between mediation and arbitration. If one of the parties attempts to break a mediation agreement, it is likely that the court will enforce it and sanctions will be imposed on that party. During this evaluative approach, the mediator who facilitates the mediation process will assume the role of a fictitious courtroom. In terms of mediation versus arbitration, a mediator generally does not have the authority to make a legally binding decision.
