While divorce mediation is an effective approach to settlement in family law cases, it is not foolproof. Insurmountable problems can arise during divorce mediation that can frustrate settlement. Here are a few commons problems and ways to avoid them:
- Lack of adequate information. It is impossible to negotiate settlement when you do not know what the assets are, or what the income is. There are two solutions to this: (a) wait until both sides are satisfied that they have the information they need; or (b) proceed with an initial, brief mediation session to identify the disclosures needed and the steps necessary to make adequate disclosures. The second option is often overlooked but can be an efficient first step toward settlement; get everyone in a room and discuss what steps are needed before negotiations can begin.
- Scheduling conflicts. The length of the mediation session should be agreed to beforehand and everyone should be available for the entire scheduled time. It usually takes time to get to a settlement. You can’t have an essential party announcing in the middle of mediation that they have another appointment and must leave.
- A lack of interest in settlement. For a variety of reasons parties are sometimes not interested in settlement. Some people are inflexible and will not make deals. Others may have unrealistic expectations or be so confident that they are going to win at trial that they will not make any concessions. Still others may wish to proceed with litigation for emotional satisfaction. A good mediator can address many of these issues, but sometimes it may be better to delay mediation until everyone is open to settlement.
- A high level of conflict between the parties. Some divorcing couples cannot sit in the same room and behave rationally. A history of domestic violence may also make divorce mediation inadvisable. A mediator can address this problem by having the parties sit in separate rooms while the mediator goes back and forth.
Despite these problems, divorce mediation should usually be a focal point of the parties’ efforts, just like trial. Preparation for mediation should be conducted as intently as preparation for trial. This is true not only in an effort to secure the most favorable settlement, but also to lay the foundation for effective settlement negotiations in the mediation.