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Learning From Mediation

Someone posted a question on an online forum about a divorce agreement reached after two days of mediation. The questioner’s ex-wife wanted to set the agreement aside because some stock options assigned to the husband in the settlement agreement had subsequently skyrocketed in value. The husband was looking for some ammunition that would allow him to retain the full value of these assets. (Almost the exact same situation can be found in the recent California Court of Appeal case of Lappe v. Lappe, No. B255704 (2d Dist. Dec. 19, 2014). In that case, the wife was seeking discovery of financial statements provided by the husband during the mediation, for the purpose of attempting to set aside the mediated property settlement on the grounds of fraud and duress.)

Faced with such a crisis, it seems the natural tendency of parties and their attorneys is to analyze the issue in legal terms and threaten to go back to court for resolution. The wife’s first response was to accuse the husband of fraud, and look for other possible grounds to set the agreement aside. As for the husband, instead of expressing joy at receiving a financial windfall, or any desire to share it, he instead seemed very anxious to prove that he had no inside knowledge of the increase in value, and therefore was entitled to retain it for himself.

I responded to the question by saying that I thought it was a shame after two days of mediation that the parties had not learned a better way to resolve conflicts. Presumably the parties came to mediation the first time because they thought it would enable them to achieve a cheaper or faster or in some other way superior means of resolving the dispute over the allocation of their marital property. Why wasn’t their first thought to go back to mediation a second time to resolve this new dispute? Presumably the parties should have gained some experience in two days of mediation that would encourage them to seek a mutually agreeable resolution, instead of each seeking to win at the expense of the other. Why did they revert to a “fight or flight” response as soon as they were presented with a new challenge?

We are seeing an increasing number of cases seeking to set aside agreements reached in mediation. To me, that indicates that mediation is not always succeeding in instilling in parties the values that mediation is supposed to teach. Instead we are using mediation to cajole parties into fragile settlement agreements to which they are not fully reconciled. Settlement is unquestionably an important goal of mediation. But perhaps more importantly, mediation should aim at helping people view conflict as an opportunity to understand and satisfy both sides’ interests and needs, rather than as an excuse to descend into a destructive cycle of blame and recrimination.

                        author

Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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