By Any Means Necessary

Sep 10, 2021

Every mediator can tell stories about how mediation has succeeded—when it has resulted in an agreement between the parties.

Of course, mediators are trained to accept the possibility that a case will not resolve through mediation. Sometimes, the fact that the parties in a dispute spoke at all, with the help of a mediator, may help them move closer to an agreement in the future— in a setting other than mediation or perhaps even in front of a judge.

In divorce mediation, when spouses are having a hard time coming to agreements—when you are thinking of giving up—my tendency is to ignore that initial training which would suggest that I “let it go.” Why don’t I easily accept letting it go? Because if a divorcing couple cannot come to an agreement in mediation, then the next stop is likely divorce court. And I would like to help you avoid that outcome if at all possible.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Transitioning from mediation to litigation poses significant risks and consequences, all of which impact human lives. Here is a short list of the pitfalls:

  1. Stalemate—Once litigation begins, the process slows down, and progress can be elusive, taking months if not years. Imagine what it means to put life “on hold,” waiting for closure. For many, healing can only begin when a divorce is finalized. In litigation, healing can be delayed, and the adversarial process itself may extend the time it will take for true healing.
    2. Polarization within the family—Ask adult children of parents who had an “ugly divorce” how this affected their image of their parents and how they were impacted by a litigated divorce, especially if they were a part of an invasive custody evaluation.
    3. Mental health issues—Divorce is emotional, conflict is emotional, and a litigated divorce can trigger extreme emotional instability, both for spouses and for your children.
    4. The disintegration of trust—Some divorces start with trust already threatened or diminished. Litigation can erode remaining trust and threaten any hope of rebuilding it.
    5. Loss of control – Once mediation ends and litigation begins, you are basically giving up most of your control over the outcome. That control goes instead either to the attorneys who attempt to negotiate a settlement or to a judge, who doesn’t know you at all but who will render a final decision, which is perhaps not what either of you wanted.

These life-altering risks and consequences compel me as a divorce mediator to make a concerted effort, by any means necessary, to keep you in mediation—to protect you and others from the extreme damage of litigation.

In a future entry, I’ll discuss possible interventions I use in the mediation process to get a mediation that is threatened by termination back on track to a final settlement.