Mediation is a voluntary process. You cannot order someone to enter mediation. Even the court cannot force an unwilling individual to mediate a settlement or to resolve a dispute. One of the key ingredients of the mediation process is its voluntary nature. In divorce, for example, we can easily envision two individuals who jointly agree that mediation is the best vehicle for reaching a settlement. No fuss, no dissension, right? Yes, but this depiction is not always accurate. This article focuses on couples who did indeed mediate their divorce but the road to mediation was neither direct nor obvious. Consider the following questions posed by divorcing individuals who was unsure if mediation was a possibility.
My spouse and I have been engaged in the litigation process for over a year. Numerous motions have been filed. Four-way meetings (clients and each of their attorneys or attorney team) have been held. Pre-trial hearing did not help us reach settlement. We are depleting our marital estate. Is mediation still a possibility?
Yes, you can still mediate if both of you are open to trying mediation. Some of the most successful mediation cases involve couples who have been deeply embroiled in legal actions and negotiations prior to mediation. Often they enter mediation skeptical that after all the time and money spent working within the legal system, they can now sit down together and reach an agreement. Yet, despite their distrust of the process and perhaps of each other, often these couples do succeed in reaching an agreement. Perhaps in part, they are simply weary of the slow and expensive nature of the legal system. Perhaps they are open to a different approach only because they have failed to achieve results promised by their advocates. The first time they are actually able to discuss together the issues to be resolved, the first time they are able to consider various approaches to resolving differences, the first time they agree on an issue, no matter how minor it may seem, produces a strange feeling of almost euphoria. This is not to say that mediation is a panacea or that couples mired in legal actions and counter actions will suddenly reach a settlement. The road to “yes” is not without its detours. Yet this is to say, that mediation, with a skilled mediator, can facilitate reaching agreement. A problem-solving approach with the objective of creating an equitable and workable agreement is not out-of-reach even for those embroiled in the legal system. At the very least, the couple can use mediation to reach agreement on some of their issues, narrowing the settlement field.
My spouse filed for divorce (contested no-fault filing). I was going to propose that we mediate our divorce but I guess it is now too late. He has a lawyer. Is mediation still a possibility?
Yes, you can still mediate. In fact many couples enter mediation after one has filed for a contested no-fault divorce or files at some time during the process. If you both agree to mediate the filing serves as a place holder for a date when you can meet with the judge and, if you have reached an agreement, change to an uncontested no fault divorce.
My spouse and I had agreed to mediate and then my spouse decided to hire a lawyer. Is mediation still a possibility?
Yes, you can still mediate. The mediation process does not deprive either party of legal counsel. Some participants have legal counsel throughout the process, even in some instances with attorneys participating in the process. Other participants check occasionally with their attorney when they are considering different proposals. Others wait until they have a draft agreement and then solicit attorney input. And, still others are “lawyer shy” for various reasons and do not seek advice of counsel.
The above examples serve to illustrate that mediation clients are not all alike. The mediation process is not limited to those who are good communicators and agree at the outset that mediation is the process of choice. Nor is mediation limited to those who have minimal, if any, assets and therefore believe that the mediation process, which is quicker and less expensive, is best suited for them. The above examples also serve to illustrate that the route to mediation is not always obvious or clear cut. Couples may start with the legal process and embrace mediation when their assets and energy wear down. Couples may not know anything about mediation when they begin the divorce action. Knowledge of mediation may come after the divorce process has begun, offering the couple a different and perhaps even appealing route. The above examples suggest that separating and divorcing couples may well benefit from learning about the different options available to them, even if they are latecomers to the mediation process.
