Short answer

If mediation fails, you will usually need to continue with court processes unless the parties later agree to settle. For partition disputes, that generally means a contested partition action in civil court where a judge may divide the property or order a sale. For probate disputes, the case proceeds in probate court to hearings or trial on the contested issues (for example, will validity, fiduciary duties, accountings, or inheritance claims).

Detailed answer — how this plays out in Hawaii

Mediation is a voluntary, confidential process in which a neutral mediator helps parties seek a negotiated settlement. In Hawaii courts encourage alternative dispute resolution, and some matters may be referred to or require mediation before trial. If mediation ends without agreement, the practical and legal next steps differ slightly depending on whether the dispute concerns partition (division of co-owned real property) or probate (administration of a decedent’s estate):

1) Partition disputes (co‑owner disagreements over land)

– If the parties have not already filed suit, one co-owner can file a partition action in civil court asking the court to divide the property among owners (partition in kind) or, if physical division is impractical, to order a sale and divide the proceeds. If mediation fails and no suit has been filed, a party who wants a judicial remedy typically files that complaint.

– If a partition lawsuit is already pending and mediation fails, the case returns to the court docket. The judge will set pretrial deadlines, allow discovery (requests for documents, depositions), and ultimately hold hearings or a trial. The court has equitable powers to order the form of partition it finds fair under the circumstances.

– Possible court outcomes include: (a) partition in kind (divide the land if possible), (b) partition by sale (sell the property and split net proceeds), (c) adjustment of interests to reflect contributions, or (d) other equitable relief (e.g., awarding money to one party for improvements).

2) Probate disputes (will contests, fiduciary claims, accountings)

– When mediation does not resolve contested probate issues, the parties continue in probate court. The probate court will schedule hearings on motions (for example, to remove a personal representative or to admit or reject a will) and, when necessary, a trial on the merits.

– The court may require or permit additional discovery and will apply state probate rules and precedent in arriving at a decision. Courts can order remedies such as validating or invalidating a will, appointing or removing fiduciaries, ordering accountings, or awarding damages and costs where appropriate.

3) Court‑ordered mediation and deadlines

– In some Hawaii courts, a judge may order mediation as part of case management. If mediated settlement is not reached, parties must meet court deadlines for filings and discovery. Failing to follow scheduling orders can lead to sanctions or unfavorable rulings.

4) Cost, time and risks

– Litigation generally costs more and takes longer than mediation. Trial risks include uncertain outcomes, potential liability for the other side’s costs, and the judge’s discretion in dividing property or awarding relief.

5) Appeals and post‑trial options

– If a party loses at trial, they may have an appeal right under Hawaii appellate procedure. Appeals add delay and expense and require legal grounds such as errors of law or procedure. Settlement remains possible even after trial, but the court’s final judgment remains enforceable unless stayed or reversed on appeal.

Relevant Hawaii resources

– Hawaii Revised Statutes and consolidated law resources: https://www.capitol.hawaii.gov/hrscurrent/

– Hawaii State Judiciary — general court and self-help information: https://www.courts.state.hi.us/

Practical steps if mediation fails

1. Confirm procedural status. Check whether your case is already in court and note upcoming deadlines and hearing dates.
2. Talk to an attorney. Get advice about pleading, discovery, and likely court outcomes under Hawaii law.
3. Preserve evidence. Gather deeds, title documents, appraisals, estate inventories, accountings, bank records, correspondence, and witness names.
4. Consider interim relief. In partition cases, you can ask the court for temporary possession, rent accounting, or an injunction to prevent waste. In probate, you can move for emergency orders involving estate assets or fiduciary conduct.
5. Evaluate settlement alternatives. Even after mediation fails, you can ask the court to refer the case to another mediator, arbitration, or a neutral evaluation to reduce risk and cost.

Hypothetical example (illustrative)

Two siblings inherit a beachfront lot. Mediation breaks down because they disagree on whether to keep or sell. One sibling files a partition action. After discovery and a bench trial, the court finds a physical division impossible without harming value and orders a sale with costs and sale proceeds split according to ownership interests. The losing sibling may appeal, but the sale proceeds are placed into the court registry until appeals conclude.

When you might not have to go to trial

Even if mediation fails, parties sometimes settle later during discovery, on the courthouse steps, or after a dispositive ruling on legal issues. Courts also sometimes refer cases to settlement conferences or evaluation panels that produce a negotiated result without a formal trial.

Helpful Hints

• Bring a realistic range to mediation. Know your minimum acceptable result and your “walk‑away” position.
• Get a current appraisal or market analysis before agreeing to partition by sale.
• Document improvements and contributions if you claim a larger share in partition or setoff in probate.
• Keep written records of communications about settlement offers. Courts sometimes consider good‑faith negotiation conduct.
• Ask about limited‑scope representation if full representation costs too much. An attorney can prepare pleadings or attend key hearings for a narrower fee.
• Check local court rules and calendars. Compliance with scheduling orders avoids sanctions and keeps your case on track.