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Mediation myths

By Jim Robenalt

Mediation is growing in popularity due to the multitude of benefits that it offers. It provides flexibility and convenience unmatched by traditional litigation methods. There are cost-savings that can protect a family’s resources. It is a more peaceful way to divorce, promoting emotional ease and healing that can benefit children.

Despite its many benefits, there are certain things people get wrong about divorce mediation. It remains an alternative form of dispute resolution that is often misunderstood. Here are a few misconceptions:

1.     “If I mediate, I will have to be agreeable and avoid conflict.” (False)

Because mediation represents a kinder, gentler approach to dispute resolution, participants sometimes believe they’ll need to be amicable and avoid fighting for their own interests. It’s a false belief that you’ll have to roll over and surrender your needs to make nice. This is not correct. At the very outset of a mediation, I encourage parties to show up for themselves and stand up for their interests. Without question, parties should aim to be reasonable. But there is a great deal at stake, and in the interests of fairness, each side must give voice to what they want. As a mediator, it is my job to listen to the parties’ positions, drill down, and uncover their true needs and interests. Only then can a meaningful negotiation begin.

Couple talking during divorce mediation

 

2.     “If I mediate, I will not have a lawyer to protect my interests.” (False)

When parties mediate with me, they typically do so without lawyers present. One of the cost-saving measures of divorce mediation is having the opportunity to speak directly with your spouse without having to communicate through lawyers. That said, you absolutely can obtain the benefits of mediation while also protecting your legal interests.

First, you are welcomed and encouraged at any point to consult with a lawyer on any issue in which you need guidance. You can consult with a lawyer prior to mediation, you can consult with a lawyer during the sessions, and you can consult with a lawyer at the conclusion of mediation. You do not sign legally binding divorce agreements during mediation and you can always have a lawyer inspect the agreements that you and your spouse negotiate.

Second, I am a licensed lawyer and trained mediator and will take every measure to ensure the mediation process is scrupulously fair. While I cannot provide legal advice as a mediator, I can provide information. I will provide a list of items that you need to resolve in order to accomplish a dissolution. Mediation is not a free-for-all. It is a guided negotiation in which I lend structure and help every step of the way.

 

Painted hands of different colors working together in divorce mediation

 

3.     “Effective mediations are done just before trial.” (False)

One myth commonly shared by lawyers is that a mediation has to be properly leveraged with fear of an impending trial. You’ll hear the expression that successful mediations are conducted on the “steps of the courthouse.” As a former litigator, I am familiar with this line of thinking. The belief goes — parties only get realistic when they’re about to face a judge or jury.

This logic does not apply, however, when it comes to divorce mediation. There are a few reasons, which can be boiled down to “carrots and sticks.”

First, the carrot: both parties are seeking to conclude their marriage which means they are motivated to reach a resolution. If you can successfully navigate the mediation process, you can move on with the next chapter of your life.  There lies a hopeful future ahead. Once you are beyond divorce, your kids can begin settling into a new routine, and you can move on toward rebuilding your life.

Second, the stick: parties do get realistic at a divorce mediation because they are facing a harsh alternative reality. If they don’t successfully negotiate an efficient and cost-effective resolution at mediation, they will need to hire lawyers and litigate. This a significant and costly consequence which parties wish to avoid.

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