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.


Is Divorce Mediation for You?

Mediation is a process.  It is a journey.  It is not a journey that is for everyone…until they are ready.

A recent blog hits on three “red flags” that divorce mediation may not be a process that is right for you.   Sometimes mediation is a process that is right for couples once the individuals “are ripe” for resolution.   What does that mean?   Parties that succeed in mediation often have these characteristics, among others:

  • A desire to get out of the current state of affairs and move forward to something that is more certain.
  • A firm awareness that reconciling the marriage will not occur.
  • A strong interest in having some control over the outcome rather than awaiting a trial court’s decision, which may not be favorable or that does not best fit your family’s needs, culture, etc.
  • A sufficient measure of confidence in what the legal landscape of divorce entails for their particular case.
  • Strong preparation in budgeting, inventorying assets and debts, and making decisions about the children that are for the children (vs. the wants, needs, desires of the parent).
  • A willingness to accept change.

In the context of divorce, not every party in the marriage attains these qualities at the same time (or ever).  However, when both parties reach a critical point of acceptance, mediation indeed may be a process that serves them well.

Mediation at the EEOC: A Management Attorney’s Advice

Workplace disputes are complicated, whether they involve legal liability, typical politics, or what initially appears as an ongoing debate on who drank the last bit of coffee without putting on a new pot.  When the dispute involves matters of discrimination, harassment, and/or retaliation, the matter may involve the employee and the employer spending time with the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC is the federal agency charged with enforcing certain civil rights laws in the workplace.  Annually it publishes the number of charges it has received and the kinds of claims that were made.  Tens of thousands of charges are made each year.  As part of the processing of these charges and investigation of the claims, the EEOC has the opportunity to offer the employer and employee mediation in which it – the EEOC – will also be a party (albeit sometimes a silent party) to the mediation session.

Mediation is a time where the parties may be able to work out their differences, set things back on course, or otherwise resolve the dispute.  A recent article from a management-side attorney offer employers advice on whether to mediate through the EEOC’s process and the prospect of “settling.”  The article begs the question of whether mediation is a useful prospect if the employer (or perhaps any party) is not willing to do something, give up something, or say something as a fixed and unmovable position.

Mediation, however, sometimes is the place where information may be obtained early enough in the process to re-evaluate staunch positions…and make informed and wise decisions before further damage occurs or dollars, time, and resources are spent…on either side of the “v.”

Workplace Investigation Training Module I – Atlanta, Friday, September 28th

One Mediation provides Human Resources professionals, in-house counsel and risk managers with engaging, active training on conducting an internal, workplace misconduct investigation.

Module I provides a strong foundation on the role of an investigation in resolving concerns, along with specific activities geared towards interviewing witnesses professionally and competently.  Module II is a practicum for attendees to work through the components of a workplace investigation, through to a mock deposition, with immediate feedback from Labor & Employment litigators.   Registrants may choose to attend only Module I; though completion of Module I is a pre-requisite to registering for Module II.  The agendas for Module I and for Module II are available.

Credits through HRCI are available.

Module I is offered in Buckhead on September 28, 2012, starting at 9:00 a.m. and ending at 4:45 p.m. Early Bird Registration ($295) closes August 30, 2012. Regular tuition: $395.00.
Module II Practicum is offered on a Friday/Saturday format. In 2012, it is offered two times: June 22-23 and again October 5-6. Regular tuition: $995.00 (Early Bird: $825).
Registration for both Module I and the Module II Practicum is $1,300 (Early Bird $1,100).
Faculty include Lorene Schaefer, Esq. and Jennifer Keaton, Esq.  These attorneys and workplace investigators have significant Labor and Employment litigation experience regarding EEOC Charges, Sarbanes-Oxley Charges, tort claims, and internal grievances that involve concerns of harassment, discrimination, bullying, poor leadership/supervision, and whistleblower and retaliation concerns. They put their litigation and investigation experience to work with these active-learning seminars.
Call One Mediation for more information (404-720-0599) or visit them online.

What Goes On At Divorce Mediations? Sample Agenda Here.

Mediation is a confidential process.  This confidentiality can make mediation seem mysterious, inaccessible, and even scary when it involves divorce.  Save family lawyers and divorce mediators, most individuals facing divorce are uncertain about the divorce process that occurs in open court.

The unknown is often feared.  Thus, the secrecy of mediation, generally viewed as a positive attribute, can be its own worst enemy particularly in the divorce context.   Dispelling some of the mystery, a sample agenda for a divorce mediation can be accessed here.

To learn more about divorce mediation, there are mediation coaches and frequent seminars offered by One Mediation.  Call 404-720-0599 to register for upcoming seminars or to schedule an appointment with a mediation coach.

Minimizing Legal Costs? An Expert’s Tips

This article gives fourteen tips from an experienced divorce attorney on simple things that clients can do to minimize legal expenses in divorce.  Simple.  Practical.

Workplace Investigations In Caselaw

Think that workplace investigations aren’t that important?  Think Again!

Federal courts are taking close looks at how employers handle indications that harassment, retaliation and discrimination is occurring in the workplace.  These cases highlight the importance of prompt, effective, and impartial investigations into reports of misconduct in the workplace, particularly when the allegations involve discrimination or other civil rights claims.

Below is a listing of several federal cases that have been rendered that involve workplace investigations:

Divorce & Finances: How Do You Make This Work?

The costs of the divorce process can be as daunting as accounting for all of the financial matters, debts included, and month-to-month cash flow issues.  The bottom line is that being informed, prepared, and organized are critical.

As for getting organized and prepared, there are fantastic resources offered by the Institute of Certified Divorce Financial Analysts.

Another comprehensive resource, even though it is not based in the U.S., can be found here.

In addition to good legal counsel, look also for local divorce seminars and “divorce coaches” who can provide advice to you on therapists, children’s issues,  and financial professionals.  Getting good advice from professionals is priceless.

Attorney Too Smart for Her Own Good in Her Own Divorce?

Electronically stored information is a hot button issue in litigation.  It may be even hotter in divorce matters where evidence of infidelity often is found in emails, text messages, voice mail messages and more.  Obtaining these various forms of information is tricky business because of a variety of state and federal laws that govern unauthorized access to them.

A case in point came down in Tennessee in July 2012 where the wife, who also was an attorney, had installed certain “spyware” on multiple computers that her husband used.  When she found evidence of his infidelity, the gloves came off in the divorce proceedings where infidelity would make a significant difference to her share of the marital assets under a pre-nuptial agreement.  The bottom line:  the court was not impressed with her actions.

The old saying “Know Before You Go” is applicable in the world of electronics.  Know what is and is not legal when accessing electronically stored information by speaking with an experienced attorney.  And recognize the value of such information being disclosed in a divorce mediation prior to protracted litigation that ends up being the subject of multiple blogs.



Divorce Seminars for Couples and Individuals (Metro-Atlanta)

Uncertain where to begin with separation or divorce?  Divorce for many people is a journey through uncharted territory.  Even hiring an attorney to help you can be an overwhelming experience.  It can be isolating, confusing, and stressful.

The amount of information on the internet about divorce is enormous, and sometimes the information conflict (the laws governing divorce differ from state to state).   Don’t surrender; get good information at seminars like these:

Below is a quick listing of some upcoming Atlanta Divorce seminars and more:

July 28, 2012 – Collaborative Divorce Seminar (Buckhead) – Co-Ed

August 18 & 25, 2012 – How to Mediate Your Divorce – (9 a.m. – Noon/Buckhead/$35) – Co-Ed

August 18 & 25, 2012Divorce Mediation & Arbitration Before You File – (12:30 – 1:30 p.m./Buckhead/$15) – Co-Ed

September 18, 2012Speeddivording: Fast Info from Pros – Early Bird Rate/Buckhead

August 4th & October 13, 2012Bankruptcy & Divorce: Which to File First? – Buckhead (call 404-720-0599)

October 26-28, 2012 – Divorce Survival School Weekend – (Overnight/Payment Plans Available) – Women Only

November 10, 2012 – Divorce 101 (Seminar for Men) 

Parenting Seminars (which satisfy certain court requirements) – Newnan/Carrollton AreaDouglas & Nearby CountiesCobb CountyFulton CountyDeKalb CountyGwinnett County.   Dates vary and are held frequently each month.  Usually $30 – Keep Your Certificate of Completion!

Divorce Consulting/Mediation Coaches.  These divorce mediators help individuals facing divorce get ready for mediation, answer questions about the process, prepare and prioritize for negotiations and working out solutions, and sort through ideas on “how to make it work” during the changes of separation and divorce:  JoAnne DonneAndy Flink, and Jennifer Keaton.

Local Certified Divorce Financial Analysts and Financial Neutrals.  These individuals help get your financial records in order, uploaded, and analyzed with an eye to division, taxes, budgets and more:  Lisa DeckerAnitha Rao.