Short answer
Yes. If mediation does not produce a settlement in a Virginia partition or probate dispute, the matter usually proceeds to court. Mediation is a dispute-resolution step — often encouraged or court‑annexed — but it does not replace the circuit court’s authority over partition actions or probate contests under Virginia law. See Virginia Code Title 8.01 (civil procedure, including partition) and Title 64.2 (probate and estates) for the statutes that govern what the court may do next: https://law.lis.virginia.gov/vacode/title8.01/ and https://law.lis.virginia.gov/vacode/title64.2/. For information about court‑annexed alternative dispute resolution programs, see the Virginia Courts ADR page: https://www.vacourts.gov/services/alternative_dispute_resolution/.
How this typically plays out in Virginia
-
No binding result from a failed mediation.
If parties do not sign a settlement agreement at mediation, there is no enforceable resolution coming out of the mediator. The case remains open and litigation steps continue unless the parties later reach and file a written agreement the court adopts as a consent order.
-
Proceeding (or continuing) in circuit court.
Partition actions and most probate matters are handled in Virginia circuit courts. If mediation fails, parties must prepare for hearings and trial in the circuit court that has jurisdiction over the property or estate. The court can resolve partition by ordering physical division or a sale and distributing proceeds, or resolve probate disputes by admitting or rejecting wills, settling accounts, or appointing/replacing personal representatives under the probate code. Relevant statutory framework: Virginia Code Title 8.01 and Title 64.2: https://law.lis.virginia.gov/vacode/title8.01/ and https://law.lis.virginia.gov/vacode/title64.2/.
-
Pretrial steps after mediation fails.
The court process will include standard litigation tasks: pleadings (complaint, answer, counterclaims), discovery (document requests, depositions, interrogatories), motions (e.g., motions for summary judgment or to exclude evidence), pretrial conferences, and then trial if the case still has unresolved issues. Local circuit court rules and deadlines control scheduling; many courts also require or encourage ADR before trial.
-
Partition-specific remedies.
In a partition action, if the co-owners cannot agree, the court may appoint commissioners to view and divide real property or order a sale and division of proceeds. The court’s partition remedies and procedures are carried out under the civil procedure statutes: https://law.lis.virginia.gov/vacode/title8.01/.
-
Probate-specific remedies.
For will contests, accounting disputes, or conflicts over administration, the court resolves whether a will is probated, whether an executor or administrator must be removed, and how assets are distributed. The court enforces the estate administration duties and may award relief consistent with Title 64.2: https://law.lis.virginia.gov/vacode/title64.2/.
-
Costs, fees, and sanctions.
Costs and attorney’s fees may be awarded in narrow circumstances under Virginia law or by contract. If mediation fails and litigation proceeds, parties should expect litigation to be more expensive and lengthier than a mediated settlement. Local rules and statutes govern fee awards and sanctions; ask counsel to evaluate the risk of fee exposure for your case.
-
Settlement after mediation fails.
Even after a failed mediation, parties can keep negotiating or return to mediation. Any settlement should be reduced to a written agreement and filed as a consent order to make it enforceable by the court.
Practical timeline and expectations
Mediation typically lasts one or a few days and focuses on negotiated resolution. If it fails, moving a partition or probate dispute through Virginia circuit court commonly takes months to years depending on complexity, discovery needs, and court calendars. Expect additional hearings, possible expert valuation (for partition) or accounting (for probate), and a trial if parties remain opposed.
When mediation might be mandatory or strongly encouraged
Many Virginia courts operate court‑annexed ADR programs. Some local rules require a settlement conference or referral to mediation before trial. Check the local circuit court’s rules or the Virginia Courts ADR page: https://www.vacourts.gov/services/alternative_dispute_resolution/.
How to prepare if mediation fails
- Preserve documents and organize financial records, title papers, deeds, asset inventories, and accountings.
- Identify witnesses and any experts you might need (e.g., appraisers for partition; forensic accountants for estate accounting).
- Track deadlines for pleadings and discovery under the Virginia Rules of Civil Procedure and local circuit rules.
- Decide whether you will continue settlement efforts, return to mediation, or prepare for trial.
- Consider whether binding arbitration (if parties agree) would be a faster alternative to trial.
Helpful hints
- Understand that a signed mediated settlement becomes enforceable once entered as a consent order; get precise written terms if you settle.
- Check local circuit court ADR rules early — some courts have deadlines or mandatory referral procedures.
- In partition cases, anticipate appraisal and possible appointment of commissioners; in probate disputes, expect accountings and formal exceptions to fiduciary acts.
- Weigh the cost of continued litigation against the likely recovery — mediation can save time and money, but only if the settlement terms are acceptable.
- Keep communication lines open with co‑owners or heirs; partial agreements can narrow issues for court and reduce trial time.
- Consult an attorney experienced in Virginia partition and probate practice to protect deadlines, file necessary motions, and develop trial strategy.