Mediation Impasse: The Value of Not Settling Your Case

Mediation is a great method for resolving family law litigation cases. While most cases are able to settle at mediation, many do not. Not settling at mediation is called an impasse. Even when the case reaches an impasse, mediation still offers parties a chance to have their “day in court” without the risks inherent in going to court. How is mediation helpful even if it doesn’t resolve the case?

Is Mediation Still Useful Even if I don’t Settle?

When a case can’t or won’t settle, mediation still offers value to both sides. First, mediation gives a preview of the opposing party’s trial strategy or narrative. The client and the attorney both get an idea of what’s important to the other side and how they need to tailor their trial preparation. Insight gained at mediation permits fine-tuning complicated property division issues like marital and non-marital property.

Not only is mediation a great discovery and trial preparation tool, it also is invaluable in helping a party get a taste for trial: both the good parts and the bad. Because it’s confidential, mediation can give parties a means to “try on” different settlement positions and see how and whether they might work. Additionally, this is a chance for the client and attorney to really get to know one another, to refine their trial strategy, and make important decisions about what’s important and what’s not in their case. Even failed mediations test the bounds of “this far and no further.”

Like going to trial, mediating divorce and custody cases is emotional for clients. With the high stakes inherent in family law cases, it’s often important not to settle the case at mediation. Not settling at mediation is called reaching an impasse. When emotions are depleted at mediation (and they will be), leaving the mediation at an impasse to think a bit longer and harder is a good solution. Although an impasse doesn’t tie up the case in a neat little settlement, it gives all the parties a breather. It gives them a chance to think and come back another day.

Learn more about mediation HERE.