What to Do in Illinois If Mediation Fails in a Partition or Probate Dispute

Detailed answer — what to expect and what you can do

If mediation does not end the dispute, one of two broad situations usually applies: either a court case has already been filed, or no lawsuit has been filed yet. The route forward depends on that status and on how close the parties came to agreement.

If a lawsuit has already been filed (partition or probate action)

When a partition or probate case is already pending in an Illinois circuit court, a failed mediation generally means the case will continue through court procedures unless the parties later agree to resolve some or all issues. Typical next steps include:

• Case management and discovery. The court docket will continue with scheduling orders, written discovery (documents and interrogatories), and depositions where appropriate.
• Motions and interim relief. Either side can ask the court for interim relief such as temporary possession, appointment of a receiver, or injunctions to prevent wasting or dissipating estate or jointly owned property.
• Further ADR. Judges may order additional mediation sessions, settlement conferences, or recommend arbitration. Parties can also agree to another mediator or a different ADR process.
• Trial. If settlement efforts fail, the court will set the matter for trial or hearing. In a partition action the court may determine how to divide or sell property and distribute proceeds. In probate litigation the court will resolve contested claims, will contests, fiduciary disputes, or disposition of estate property under the Illinois Probate Act (see the Probate Act at the link below).
• Partial settlements. Parties often settle some claims during litigation. Any partial agreement can be presented to the court as a stipulated judgment or order and the remaining issues proceed to trial.

If no lawsuit has been filed yet

A failed mediation before filing often results in re-assessing options and, commonly, one party filing a petition in court. Typical choices include:

• File a partition petition. Any person with an interest in Illinois real property can file a partition action under the Illinois Code of Civil Procedure to force a division or sale of the property. See the partition statutes referenced below.
• Raise probate claims in court. If the dispute concerns property controlled by a deceased person’s estate, parties can file petitions in probate court, for example to challenge a will, seek construction, or litigate claims against the estate under the Illinois Probate Act.
• Try a different ADR format. The parties might try binding arbitration, a different mediator, or a structured settlement process that includes appraisal or neutral valuation first.

Confidentiality, settlement offers, and later use in court

Mediation communications are usually treated as confidential under mediation rules and practice. That means settlement negotiations and most statements made in mediation typically cannot be used at trial. Confidentiality rules vary by court and circumstance; check the local court rules or ask an attorney. Even if mediation fails, a written settlement reached later can be submitted to the court for enforcement as a consent judgment.

Practical consequences of failing to settle in mediation

• Time and cost. Litigation usually costs more and takes longer than a mediated settlement. Expect additional attorney fees, expert fees, and court costs if the case goes to trial.
• Risk and control. Trial transfers decision-making power to a judge (or jury, where applicable). Mediation allows parties to craft creative outcomes that courts may not order.
• Possibility of attorney fee awards or sanctions. If a party acts unreasonably in litigation, courts sometimes award fees or sanctions under applicable statutes or rules; however, rules for fee shifting vary by claim and court.

How partition and probate statutes fit in (Illinois)

Partition actions in Illinois proceed under the Illinois Code of Civil Procedure (the Partition provisions). For the statutory framework on partition, see the Illinois Code of Civil Procedure provisions on partition (735 ILCS 5/15-1101 and following). For probate disputes, the Illinois Probate Act governs estate administration, will contests, and related claims. You can read the statutes on the Illinois General Assembly website (links below).

What an attorney can do after mediation fails

An Illinois attorney can:

• Advise whether to file (or continue) a partition or probate action and which court is proper.
• Bring motions for immediate interim relief (e.g., temporary restraining orders, receivers for property) if property is at risk.
• Preserve evidence, serve discovery, and prepare witnesses and experts for trial.
• Negotiate follow-up settlement attempts or structure partial settlements to narrow issues for trial.
• Explain cost/benefit trade-offs of arbitration, further mediations, or trial.

Where to read the statutes

• Partition rules in the Illinois Code of Civil Procedure: Illinois Code of Civil Procedure (Partition provisions) (see 735 ILCS 5/15‑1101 et seq.).
• Illinois Probate Act: 755 ILCS 5/ — Probate Act of 1975 (governs will contests, estate administration, and related probate claims).
• Illinois Courts information on alternative dispute resolution: Illinois Courts — Programs & ADR.

Helpful hints — practical steps after failed mediation

• Confirm whether a case already exists. If a lawsuit is pending, check the court schedule, deadlines, and any court-ordered ADR requirements.
• Preserve evidence. Secure documents, photographs, appraisal reports, and communications that support your position.
• Consider interim protections. If the property is at risk (damage, sale, or waste), ask an attorney about temporary injunctive relief or appointment of a receiver.
• Document settlement offers. Keep records of offers and counteroffers. Even unsuccessful offers can inform later negotiation strategy (and sometimes affect cost awards in litigation).
• Think about narrowing issues. If full settlement is impossible, focus on resolving discrete issues (valuation, sale procedure, allocation of proceeds) to shorten trial scope and cost.
• Ask about binding ADR. If you want a faster final decision, consider binding arbitration where you trade some appeal rights for speed and finality.
• Get local counsel. Local knowledge of Illinois circuit court procedures, judges’ ADR practices, and probate rules is valuable.
• Keep expectations realistic. Litigation outcomes are uncertain. Factor cost, timing, and emotional toll into decisions about whether to try again at mediation.