Litigating After Mediation Fails


I am a vocal proponent of mediation. As a divorce lawyer and a child of divorce, I appreciate the need to avoid unnecessary conflict. Mediation can be messy and slow, but I’ve seen it work more often than not.

However, there are times when mediation fails. It’s not the fault of the mediator and may not be the fault of either spouse. Sometimes the parties have very different objectives or expectations. Sometimes one party becomes obstinate or inflexible. Regardless of the reason, there are times when a divorcing couple must leave mediation and proceed to court.

Everyone who has had their mediation break down typically have a few questions. My experience tells me they’re likely the following:

Can I Tell The Judge What We Agreed To In Mediation?

Sort of, but I wouldn’t count on enforcing it. First, any mediation engagement agreement entered into prior to the start of mediation will likely require that the discussions and agreements in mediation remain confidential. Second, Illinois’ Uniform Mediation Act (710 ILCS 35/1) states that communication in mediation is confidential and not subject to discovery. Signed mediation agreements are admissible to the court. Likewise, there is some support for the proposition that fully executed mediated settlement agreements may be enforced under Illinois contract law. However, this may or may not be helpful depending on the nature of the mediated issue. For instance, in cases involving children, where the court has continuing jurisdiction (and a public policy mandate) to protect the children’s best interests, it is unlikely the court will feel bound to a mediated agreement where it disagrees with the terms.

Can I Enforce My Mediated Agreement?

Mostly yes. Mediated agreements may be enforced under Illinois contract law, but may be set aside under a number of grounds. Likewise, where the mediated agreement addresses minor children, the court may unilaterally disregard the agreement where it believes the terms are not in the children’s best interests. The enforceability of the agreement will almost certainly be contested. There are situations where a partial agreement cannot be enforced, as it was predicated on a final settlement of all issues. If those issues haven’t settled, a party cannot selectively enforce those aspects of their mediated agreement that they agree with. However, if one party has begun carrying out their part of the mediated agreement, and the other party has begun receiving and keeping the benefits, then an argument for enforcing an agreement becomes much stronger.

We Were So Close In Mediation And I Don’t Want To Lose All Of Our Progress. What Should I Do?

If mediation broke down due to a few intractable issues, the next question is whether the agreed-upon terms can be isolated or whether they were dependent on a global settlement. For instance, if Wife agrees to give Husband half of her income tax refund in exchange for Husband selling his vintage motorcycle and sharing the proceeds, and Husband refuses to sell, can he still request half of the income tax refund? The answer is probably no. If, however, the parties have agreed to all terms except the value of Wife’s spousal support buyout, and the property settlement is independent of the buyout, then the answer is likely different.

Mediation is sometimes requested by parties who are attempting to limit the amount of conflict in their case. To that end, litigation should be narrow and, if possible, done behind closed doors. The parties can stipulate to a pretrial conference (a closed-door settlement discussion held with the judge in chambers) and defer to the judge’s recommendations. This will spare them significant attorneys’ fees and stress by avoiding a full, costly, and potentially high-conflict evidentiary hearing. Likewise, the parties can agree to a narrow scope of litigation, stipulating to the terms previously mediated, and limit their time in court.

Mediation Was A Waste Of Time. What’s Next?

If mediation was unproductive, then the (sort of) good news is that there are no concerns about enforcement or confidentiality. The bad news is that the parties likely spent money and time pursuing something that only added to their frustration. Where mediation is being used to expeditiously resolve an important issue, having mediation fail only sets the settlement back and increases the duration of time the parties are in conflict.

Failed mediation is not without value. It should inform both parties of their positions, possibly of what evidence they have available to support their positions, and let the parties predict how amicable or hostile court will be.

Once mediation fails, the parties should seek out attorneys, preferably ones who are comfortable litigating their issue. The threat of litigation can be an effective gut-check for opposing parties. Likewise, if mediation was high conflict or otherwise difficult, it likely foreshadows the tenor of the upcoming litigation. Sometimes you have to get ready for a fight, even when you don’t want one.

My office has done a significant amount of mediation work over the years. Not only do we frequently send cases to mediation, we frequently litigate cases where mediation has failed. As always, we are happy to meet and discuss your case at any time.

For a free consultation, call Stern Perkoski Mendez at (847) 868-9584 or contact us.