Why doesn’t mediation always work?

Can any couple go through mediation? When should you start the mediation process during a divorce?

Why Doesn’t Mediation Always Work Transcript

Why doesn’t mediation always work? Boy, I wish mediation did work in every case, and it does work in a tremendous number of the cases that I’ve been involved with. It’s so much better to resolve your situation by mediation than by litigation. It saves you so much time and money and aggravation, but, unfortunately, not every case can be mediated. Not every case can be settled by agreement. We’ll talk about why that may be, but I want to tell you a quick story.

I had a case not very long ago that involved a watch, and we tried to mediate that case. It just didn’t work. It wouldn’t go anywhere. The husband had bought a watch, probably made a big mistake, for his girlfriend. It wasn’t an inexpensive watch. It was one that cost thousands of dollars. We were trying to go back and forth with a mediator to work this thing out.

The wife in that case insisted that the watch be recovered from the girlfriend and that she get it as part of the settlement, and there was just no way that the husband was going to do that. At that point, I don’t know that he could have done it, and we just weren’t able to reach agreement. We spent all day long. We started at 9:00 in the morning, went until almost 11:00 at night trying to mediate that thing, and it couldn’t be done.

There are some reasons that some cases just can’t be settled in mediation. Let’s walk through. Probably the most significant reason that these cases can’t be resolved in mediation is that it’s just too soon. You can’t mediate a case when emotion is still percolating, when everybody is in that sort of out of control intense phase. Time needs to pass.

You know, they say time heals all wounds, and I hope that’s true, but I do know that time makes mediation a lot easier. So if you’re going to give this a shot, give yourself some time before you mediate. I would say that the average couple needs a couple of months to sort of cool down before they jump into the mediation process. Don’t move too quickly.

Second big reason that I see these cases get stuck and mediation reach impasse is that somebody’s just irrational, that they’re doing things that don’t make sense. I think that the watch, you know, the story I just told you, that I certainly understand the emotion of all that, but the watch wasn’t that important, and that was sort of an irrational demand that caused us to reach impasse and for the whole thing to break down. There are all kinds of things that I’ve seen where people just lose their ability to behave in rational manner, and that makes it tough to resolve the dispute in mediation.

Some families get into what I call war games, where they’re really literally fighting the war. If you’re in one of those situations, mediating is very difficult. This whole clean the bank account, starve your spouse out thing, it makes it very tough to mediate. You need people that are behaving reasonably, that are trying to work together to get this done. War games are just the death now to mediation in most families.

Then, finally, we get these situations where one spouse or the other just makes ridiculous unreasonable demands. Best example is when we have an alimony dispute where the dependent spouse insists that the alimony be everything that the supporting spouse earns. We can’t settle that in mediation. You can’t work something out unless both parties are willing to come to the middle an be reasonable.

The final situation where I frequently see mediation fail is where there’s a dramatic imbalance of power. A good example of that, probably the best example is where there was violence in the family. You have one spouse who is literally afraid of the other spouse, and we’re trying to mediate. What ultimately happens in that situation is that the spouse that feels so little power is ready and willing and able to give up. They just surrender.

But thankfully they’ve got a lawyer in the process with them that keeps them from doing that and protects their rights and helps them to stand up for what they’re entitled to, but the mediation ultimately breaks down. We see lots of other situations where there’s an imbalance of power, where there’s been adultery, some sort of an affair, that sort of thing. Imbalance of power can stop a mediation dead in its tracks.

Yeah, there are lots of reasons why mediation might not work, but most cases where we attempt mediation it does work. We’re able to reach agreement. I’m a big fan of mediation. It’s proved to be successful to us in many thousands of cases, and you certainly ought to consider it. Don’t let my concerns about the mediations that don’t work out discourage you from doing mediation in your case. It’s a great option for getting things resolved.


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