Potential Pitfalls of Mediation
The new hot thing in the world of the contested is mediation. Contrary to what seems to be the popular belief, mediation’s actually not a new phenomenon. Mediation initially developed in Ancient Greece with and in a non-family context was called a proxeneas. The well known tribal process of taking a dispute to the headman or chief also could be construed to be a form of mediation, especially where the headman would not render a binding decision but helped the parties arrive at a mutually agreeable solution. Mediation might therefore be called as new as history.
Mediation has taken off with the modern explosion of divorce litigation. Courts are ill equipped to handle the level of detail and continuing oversight present in nearly every contested divorce. Tennessee and other states across the nation are now requiring that parties attempt to mediate any case before their judiciary will grant or hear a contested divorce.
Mediation’s not all sunshine and roses; however, it’s a big business. Mediators charge as much or more than lawyers and more complicated cases can take days or weeks to mediate. The traditional mindset of attorneys working out a reasonable proposal between themselves has also increasingly disappeared as the mindset as become “we must mediate”. While having attorneys talk to their clients and then try to meld an acceptable settlement between them to present to their clients has obvious downside risks, it also can be much cheaper and less time intensive.
Mediation can lead to an all or nothing mindset. In fact, while a judge is not required to accept the results of a partial mediation, judges will as a practical matter in most instances gladly accept an agreement on some issues and decide the rest. These cuts down on their work, and remember, modern judges almost always have near overloaded dockets.
Also, beware of bully mediators. A little bit of pressure and providing a third party set of eyes on the part of a mediator can help the process, but be aware that a mediator can’t dictate a decision. Some mediators will pressure clients and falsely represent there are major potential dangers to not reaching a full agreement then and there. The insinuation that a judge will sanction a party for not mediating in good faith is quite rare provided the party stays at the table for a reasonable length of time. There are some judges who have gone a bit overboard in insisting upon mediation, so consult with a lawyer about this if you have heard or someone tells you the judge in your case fits in that category. This should not be case for mediation which is designed to be a low pressure process. Taking your lawyer dramatically reduces the odds of a “shotgun” agreement from a psychological perspective, but a lot of parties reject the cost and go to mediation as just the parties.
The final and most damaging use of mediation can be to drain the parties financial situations, with mediators costing thousands of dollars be aware that in cases of extreme financial resource differential between parties that it’s perfectly possible a party with no intent of settling will drag the mediation on in order to gain an advantage in litigation. Overall, mediation can be a cost-effective end to a complicated and explosive situation, but being aware of the potential dangers should help you go into the process with open eyes.
