Does a Divorce Mediator Always Recommend Mediation?

Does a Mediator Always Recommend Mediation?

Andy Flink and JoAnne Donner CDFA

            As mediators, we are frequently asked about how a mediation session works.  By the time we finish explaining the process, everyone has the same response…..that it’s a terrific alternative to litigation and when two people are embroiled in conflict it’s their best option.  But is mediation always a good idea?  Do we always recommend mediation to parties in dispute?  You might be surprised to know that every so often, deciding to mediate two willing parties in a squabble turns out to be a bad idea.

If both sides are openly willing to mediate, why would there be a situation that, after anywhere from one hour to ten hours, everyone wonders why we bothered to meet in the first place?  Here are a dozen reasons why mediation can be unproductive and when it may have been best not to meet at all:

1. Missing Information.  Rarely is a case resolved in mediation where there is a lack of discovery or incomplete, unverified financial information. There is already mistrust in the room; this simply adds to it.
2. Lack of respect.  Knowing how to “act” in a mediation session is important.  We tell mediation coaching clients to pause and consider everything the other side is asking for and offering.  If for no other reason than to appear that you are being respectful and considerate of their position, whether or not you really are.  Parties in mediation have a tendency to “show their hand” through body language, tipping off the other side that respect is merely a song by Aretha Franklin.
3. Unrealistic expectations. “I get everything and you get nothing.”  Once we mediated a case where the plaintiff demanded a 90/10 split as equitable division because “He was the one who worked all the time.”  This kind of extreme thinking is not unusual but can send negotiations into the no-settlement zone.
4. Bad timing. Fortunately, courts send almost every case through the mediation process.  Unfortunately, it might be before the disputing parties have completed discovery or are emotionally ready to consider settlement.
5. It’s a fishing expedition.  The other side shows up for the sole purpose of learning everything they can about what the other side’s position is and why.  They have no intention of settling…and sometime during the day you figure this out.
6. Subject-matter expertise. When a divorce mediator is asked to do landlord/tenant  mediation or a personal injury lawyer represents a client in divorce mediation, it may not work very well.  Typically, there is no substitute for experience and expertise in a specialized niche.
7. A missing party.  Virtual communication technology is impressive, but when one party is 3,000 miles away in Seattle and the mediation session is in Atlanta, phone or Skype doesn’t always reveal subtle cognitive or behavioral clues.  It may be difficult to know what the long-distance party is really thinking, since much of what mediators look for are not only verbal cues, but physical ones as well.
8. Schedule conflicts.  You’re seven hours into a mediation working towards a resolution and suddenly one of the parties declares they have a prior commitment.  While they had plenty of opportunity to reveal this information earlier in the day they chose not to, sending the mediation into a tailspin.
9. Lack of motivation.  A party prefers to maintain the status quo and strongly resists settlement.  Sometimes this occurs where leverage is solely on one side of the table, or where one party has “everything to gain” and “nothing to lose” by keeping financial and emotional circumstances the way they are for as long as possible.
10. Polarity or a desire for vengeance.  Rarely do couples in divorce mediation get to divorce at the same time for the same reasons.  One party may feel a need for the other party to “pay dearly,” whether or not this serves their best interests.  When vengeance is a prime motivator, the ability to be fair and reasonable is dramatically compromised.
11. Inflexibility.  Regardless of the truth, one party sees the facts in a completely different way than the other.  If one party’s parents funded the purchase of the marital home, they may insist that they are entitled to 100% of that asset with no consideration paid to the facts, the law, or equitable division guidelines.  Parties’ perceptions become their reality and, frequently, no matter what the facts are they refuse to alter their position.
12. History of high-conflict.  Relationships that have been controlled by antagonism,   intimidation, emotional abuse, or domestic violence, can make mediation the wrong       choice.  While mediators are trained to effectively address power imbalances, when one party’s emotional or cognitive competencies are significantly impaired due to past abuse,  a suitable and durable outcome is unlikely.

For mediation to work, it takes a desire for a timely, cost-effective resolution that will keep the dispute out of court.  Key motivators are a willingness to cooperate and to focus on a fair result for both sides.   For couples who will play by those rules, and who want what’s best for the children and the future of the re-defined family, mediation can be the right way to navigate the pitfalls and possibilities of divorce resolution.