Who says Mediation is not for Complex Cases?

Debunking common Myths about Mediation and Asserting how Litigators can help with the process

Mediation has rightfully earned a reputation as being a generally easier and less expensive road to divorce. Unfortunately, it has also earned an unfair reputation as the path taken by what I’ll call shiny, happy people – the couples who share the same views on parenting and finances and are at ease with family dinners and shared holidays. While encouraging to know these relationships exist, about 75 percent of my clients are not on amicable terms when they enter mediation. Frankly, many clients begin the process expecting a fight. As a family law attorney and one time litigator turned neutral third-party Chief Peacekeeper™, I find this interesting, given mediation means, by definition, to bring conflicting parties to reconciliation, settlement, or compromise. Yet, it’s undeniable that many come to the mediation table ready to take aim.

Even with tumultuous separations, once the parties grasp the concept of mediation, generally the most stubborn individuals can agree mediation offers a host of benefits to reach a divorce settlement. It’s smarter, less stressful, more efficient, flexible, economical, and private. So why do some couples still hesitate to enter into mediation? Although mediation is much more prevalent in divorce culture, there are still misconceptions pervasive in my line of work, including some perpetuated by adversarial divorce attorneys. I’ve had divorce attorneys tell me, “Mediation only works for couples with very little money and no kids.” This is of course preposterous as I have mediated cases involving millions of dollars of property and huge sums of income as well as cases involving difficult parenting challenges including children with long-term disabilities requiring lifelong care.  I find that when couples are already working with their own divorce lawyers, it’s extraordinarily helpful to have the attorneys help dispel these fallacies, explain the benefits of mediation and coach their clients through negotiations. With that in mind, let’s debunk a handful of the more enduring divorce mediation myths that tend to put the brakes on what should be a logical and beneficial process.

Myth #1: Divorce mediation is not for complex cases.

After nearly 20 years in practice, there’s almost nothing I haven’t seen. When emotions are running high, perceived complexity heightens, and if divorce attorneys are already involved in the situation ardently advocating for one side (as they should), things have likely become further inflamed. Many times, all it takes is the unbiased thinking of a skilled mediator to root out unnecessary complications and provide solutions. When the lens of an all or nothing approach is removed, solutions tend to come about faster. In fact, more than 90 percent of my clients reach a resolution in a few months.

Of course, there are couples whose financial or custody issues are certainly more complex than the norm, but here again, mediation proves to be an effective option. I once had a situation where one parent desired to move to India with the minor child, thereby leaving very little custody time for the remaining parent. Yet, we were able to bring resolution in less than five meetings. By fostering productive, communicative conversations, a skilled mediator helps the couple explore more creative options that the court system will not. It’s a reality grounding moment when I remind couples that a divorce hung up in the court system ultimately leads to an uninvested stranger, often annoyed with the inability of the couple to agree, determining custody, finances, spousal support, and properties. As a father of three, I’m a huge proponent of keeping the courts out of custody decisions whenever possible, and I’ve yet to come across a couple who would prefer a stranger determining the fate of their children.

Myth #2: Mediators can be swayed by one spouse who has a more dominant personality.

Some litigators hesitate to send clients to a mediator because they are afraid the other party will dominate the negotiations in their absence. This is particularly true of litigators who take a more combative approach. To calm the concerns of any litigators who feel this way, I simply say to them that we will work out concepts and ideas for settlement but that nothing is final until the attorneys get a chance to give their input. Any mediator worth his or her title is trained to be impartial, and I often see seemingly timid parties advocate for themselves and speak their mind when they don’t have their lawyer telling them what to do. While not a spokesperson for either individual, to ensure fairness, a mediator will step in to make sure the individual is asserting him or herself. Even the most “my way or the highway” personalities tend to ease up when apart from their litigator. The time spent with a mediator, apart from their hired team, forces them to face what is truly at stake for their future. By nature of that realization, people are often humbled into compromising.

A skilled mediator will explain how the law applies to the circumstances in the case and ensure both parties are heard and treated fairly in a structured environment that keeps conversations from derailing. Remembering this isn’t couples therapy, the desired outcome is for the mediator to deliver a good dose of reality in terms of setting logical, equitable expectations and driving a solution that is fair to both parties. Ultimately, it’s helpful for a divorce attorney to remind their clients that a mediator does not make the decisions for the couple – they are there to bring compromise. It’s valuable for them to stress that their clients are there to reap the benefits of a productive discussion as well as the flexibility and dignity that goes well beyond the court system.

Myth #3: Mediators are a waste of money if an agreement can’t be reached.

I tend to just shake my head at this one. Even couples who begin and ultimately abandon the mediation process find themselves armed with the information they need for a divorce attorney to process things more quickly and economically. For couples who entered mediation after hiring divorce attorneys, they now have fresh, neutral thinking that has entered the picture, and they may be willing to bend ever so slightly. This may be a welcome change for even the most adversarial lawyers looking to wrap up a case before it’s forced to go to court. Mediation lowers the risk for all parties that the case will end up at the whim of an overtaxed, exhausted court system. One very telling statistic asserts that couples who divorced via mediation are 75 times more satisfied with the outcome than when it was handed down by the courts. In fact, those who mediate settlements return to court less than 15 percent of the time after the divorce judgment is entered, whereas those who litigate return to court in far greater numbers, more than 60 percent of the time. By mediating a resolution and coming up with the terms collaboratively, couples abide by those agreements voluntarily which is certainly not the case when a person is ordered by a judge to do something or not.

Myth #4:  Divorce mediation is not legally binding.

This tends to be widely believed, but simply said, it’s false. It’s particularly helpful for divorce attorneys to explain to their clients in advance of the process that mediated agreements are legally binding and like court-ordered agreements, they are enforceable and can be taken to court. If the parties are using mediation as a complement to a court system, the agreements reached in mediation can be entered into a formal settlement or court order.

No Winners and No Losers

It goes without saying that there really are no winners and no losers when it comes to divorce – even if you did walk away with the coveted candlesticks. Nobody goes into marriage hoping it doesn’t work out. Even in the most contentious of cases, there is grief – even if it simply accompanies the realization of having made a terrible life choice. However, mediation can absolutely keep sanity in what can become an insane divorce process. Getting couples to the mediation table is half the battle, and having legal partners debunk the most prevalent myths can help get them there and one step closer to moving on with their lives.

Scott Levin

Chief PeaceKeeper Scott F. Levin Scott Levin is the founding partner of San Diego Divorce Mediation & Family Law (858-255-1321). Mr. Levin is an active member of The Academy of Professional Family Mediators and many other organizations that promote the benefits of family mediation. Scott is also a licensed attorney in the state of California… MORE