Many mediations reach a point where both people stop moving. One side has made its last offer and the other has said no. That is an impasse. It is common and usually temporary, and how long it lasts depends a good deal on what the two of you did before you arrived.
John Laubach mediates family and civil disputes for people in Arizona and Michigan, and he has practiced law in Arizona since 1987. His own notes on avoiding impasse start with a blunt line: "You got to get your mind right."
Why Mediations Stall
Impasse usually has more than one cause. These come up most often.
Arguing Positions Instead of Interests
A position is what you say you want: the house, the children every other week, a set amount of support. An interest is why you want it. The Program on Negotiation at Harvard Law School, drawing on Getting to Yes, describes positions as surface demands and interests as the needs and concerns underneath them. When two people trade positions, they can split the difference or stop. Once each understands what the other needs, they sometimes find an answer neither one brought to the table.
John's way of putting it is a single orange that two people both want. Cutting it in half looks fair. But if one person wants the fruit to eat and the other wants only the zest for a recipe, half is the wrong answer for both of them.
Emotion
Divorce and custody disputes are personal. Anger, grief and fear of losing time with a child do not leave the room because a mediator is present. A person who feels unheard will often refuse a reasonable offer because it came from the other side.
Missing Information
Nobody can agree on how to divide a retirement account whose balance is unknown, or a business nobody has valued. If discovery is not finished, one side ends up guessing and the other side ends up suspicious. John's checklist says it directly: complete the necessary discovery before you mediate.
The Wrong Person at the Table
Sometimes the person in the mediation is not the person who decides. A spouse may check every offer with a parent, a new partner or a friend who is not there. In a civil case, the person at the table may lack authority to settle. John's rule is to make sure the person who will be making decisions is the person in the mediation.
Money Pressure and Timing
A party who cannot afford a long fight may feel rushed. A party who can afford one may feel no reason to move. And some people are not ready. One spouse may still be absorbing that the marriage is over while the other has been planning the split for months. Their timelines are different, and pushing the one who is not ready rarely helps.
Lawyers Acting Like Trial Lawyers
John's notes for attorneys call this "changing hats in the middle of the stream." A mediation is not a trial. When counsel spends the session arguing the case, the other side digs in. The lawyer still advocates for the client, but the client's own voice matters most, because only the client knows some of what they need.
Before You Walk In
Much of the work of avoiding impasse happens days or weeks before the session. Here is what John asks people to do.
Get Your Mind Right
Mediation is for solving a problem. If you come in looking for the other person to admit fault, you will probably leave without an agreement. Come in looking for something you can both live with.
Gather the Documents
Bring what your lawyer has asked you to put together: account statements, tax returns, debts, pay records, and a proposed parenting schedule. Michigan's court rule on domestic relations mediation, MCR 3.216, lets the mediator require each side to submit a mediation summary at least 3 business days before the session, covering the issues in dispute, the marital assets and their estimated value, income and expenses, and a proposed settlement.
Know Your Plan B
The authors of Getting to Yes, Roger Fisher, William Ury and Bruce Patton, call it your BATNA: the best alternative to a negotiated agreement. John calls it Plan B, and he frames it as a question: if you do not settle today, what happens? In a court case, the answer is that you go to trial, often months away. He suggests putting these questions to your own lawyer before the session:
- How long until trial?
- How much will it cost to get there?
- What is a judge who does not know me likely to do about custody, support, spousal maintenance, the house, the car and the retirement accounts?
- How likely is it that the judge gives me what I am asking for?
He also asks a few that no lawyer can answer for you. How much stress can you stand? How much can your children take? How are you sleeping? What is the fight doing to your work, and to your relationship with the person who will be your co-parent for life?
Decide Who You Are Doing This For
Friends and relatives will tell you what happened in their divorce. Your case is not theirs. John's advice is to put yourself and your children first, not necessarily in that order, and to stop measuring what the other person is getting. Ask whether your needs and your children's needs are being met.
What a Mediator Does When Talks Stop
A stall in the middle of a session is not the end of it. Mediators have a set of tools, and a good one will try several.
- Private meetings. The mediator meets with each side separately, often called a caucus. People say things in private they would never say across the table, including what they could accept.
- Reframing. "He wants to take the kids away from me" may become "you both want real time with the children, and you disagree on the school-year schedule." The second version gives both people something specific to negotiate.
- Setting the hard issue aside. Moving to an easier question and coming back later often changes the mood. Agreement on small things builds some trust for the large ones.
- Partial agreements. Settling the parenting plan today and the retirement accounts next week is still progress.
- Homework. If a number is missing, the session can end with a list: get the appraisal, run the support calculation, ask the plan administrator about a division.
- A break or a second session. John's notes say it plainly: take a break. A night's sleep or a week's distance can make an offer look different.
- Another professional. A financial professional can explain the tax effect of dividing an account, and a child or family counselor can speak to what a schedule asks of a young child. Under MCR 3.216, the parties need the mediator's permission to bring anyone other than their lawyers, and the mediator may ask for information or help from third persons if it would help settle the case.
Tie-Breaking Mechanisms
When two people are close but stuck on the last gap, there are structured ways to finish. They can agree to have the mediator give a written recommendation. In Michigan this is called evaluative mediation. Under MCR 3.216, the recommendation goes to the parties only, not to the court, and no one can be sanctioned for rejecting it. They can also agree to send one narrow issue to a decision-maker. Arizona's family law rules provide for family law arbitration, where the parties choose a neutral who decides the issues they submit.
What You Can Do Yourself
The mediator manages the process, but you control your part of it.
Listen to what the other person needs before you state your demand or answer theirs. Ask the question behind the offer: why does that matter to you? Think outside the box, because the answer may be something neither of you came in asking for. Keep your eye on the ball: a settlement your family can live with.
And be the parent you want your ex to be. Be civil and considerate. This person is your child's parent, and the two of you will share school events and holidays for years.
John's last item is the shortest: never give up.
When Impasse Means Something Else
Not every impasse should be pushed through. Sometimes it points to a different problem.
You may need to pause. If one of you is not ready, the better plan may be to stop and set a date to resume after counseling, a temporary order or a few months of living apart.
You may need a different structure. Shorter sessions, separate video rooms, attorneys present, or a financial professional in the room can change what is possible.
You may need a different mediator. If you have lost confidence in the mediator's neutrality, or the style plainly is not working for one of you, a change can help. If the problem is the dispute itself, a new mediator will meet the same wall. Our article on changing mediators covers that decision.
Court may be the right path. Mediation depends on both people choosing freely. The Model Standards of Conduct for Mediators, adopted by the American Arbitration Association, the American Bar Association's Section of Dispute Resolution and the Association for Conflict Resolution, put party self-determination first and say a mediator shall not undermine it to raise settlement rates or because of outside pressure. Where there is abuse or violence, the same standards direct the mediator to take appropriate steps, including postponing or ending the mediation if necessary. Some cases need a judge to decide them.
If Court-Ordered Mediation Ends Without an Agreement
Michigan
Under MCR 3.216, a mediation continues until a settlement is reached, the mediator decides settlement is not likely, the first session ends, or a time the parties agreed to. Within 7 days after it is over, the mediator tells the court only the date the process ended, who took part, whether a settlement was reached, and whether more ADR is planned. The mediator does not report who was unreasonable. If the parties chose evaluative mediation and the recommendation is not accepted in full, the case proceeds toward trial.
Arizona
Arizona's family law rules require the parties to consider ADR within 90 days after the respondent appears in the case, and they require a good faith discussion about settling the case or agreeing on an ADR process. Mediation under those rules is voluntary and confidential. In Maricopa County, the Superior Court's Conciliation Services offers mediation for parenting plans, and the court describes it as a process that does not pressure parents to reach an agreement. If parents do not agree, the dispute stays with the judge. Conciliation Services also runs parenting conferences, which work differently: they are not confidential, a court conciliator meets with the parents, and the conciliator writes a report for the court. The court lists a $300 per person fee for that service.
Common Questions
Can a mediator make us settle?
No. A mediator has no power to decide anything. The national Model Standards of Conduct for Mediators make party self-determination the first standard, and they say a mediator shall not undermine it for reasons such as higher settlement rates. If you leave without an agreement, the case goes back to the court.
Does the judge find out who refused to settle?
In Michigan domestic relations mediation, the mediator's report to the court states only the date the process ended, who took part, whether a settlement was reached, and whether more ADR is planned. If the parties chose evaluative mediation and one of them rejects the mediator's recommendation, the court may not ask who rejected it. In Arizona, mediation under the family law rules is confidential. Ask your own attorney how this applies in your case.
Is it a failure if we settle only some of the issues?
No. An agreement on the parenting schedule, or on everything except one account, means the judge has less to decide and the trial, if there is one, is shorter. The issues you do not settle can still go to the judge.
This article is general information about mediation, checked October 2026. It is not legal advice. Court rules, programs and fees change, so confirm details with your court or program. A mediator is a neutral and does not represent either party; each party should consult their own attorney. John Laubach is licensed to practice law in Arizona and is certified by the Michigan State Court Administrative Office as a domestic and civil mediator. He is not licensed as an attorney in Michigan.