What Determines Successful Mediation?
Mediation has obvious virtues and shortcomings. You must keep your eyes open and watch out for yourself. Are you comfortable with this prospect? Will you be effective in protecting yourself? Mediation cannot equalize the negotiating position of the submissive spouse with the dominant spouse’s superior negotiating skills. It doesn’t address the ability to hide assets or income; you are relying on each other to disclose the truth. An attorney’s primary obligation is to protect your interests, whether it requires discovering the truth or negotiating a favorable settlement.
Mediation is most effective in a straightforward case. When the assets and liabilities are clear and both spouses have handled the family finances, mediation has its highest chance of success. Parents concerned about their children can develop a reasonable plan for custody and visitation. Because the focus is on problem solving rather than fighting, these parties will have the ability to work together to carry the plan out. Of course, in a case with these facts, the attorneys would likely be able to settle it by a written agreement rather than actually going to trial.
The mediation result usually won’t be fair unless both spouses have equal access to all the facts. Each party must have the ability to understand the facts, the law and the consequences of each alternative decision. That’s expecting a lot, especially considering that the stress of divorce makes it more difficult, not easier, for most people to think and act rationally.
Protect yourself if you opt for mediation. Diligently do your homework outlined in the following chapters. You won’t have an attorney at your side to turn to for legal advice. You will receive guidance from the mediator through the fact-gathering, issue-identification and tentative resolution stages. However, the mediator is promoting settlement, not your personal rights.
It’s a fantasy to believe that mediation is going to work for you if your Case Evaluation from Chapter Four shows that you have an uncooperative spouse. Mediation demands cooperation, and expects it without the threat of a court proceeding hanging over you. Each of you must be motivated to participate honestly in settlement discussions. The prospect of resolving all the necessary issues relatively quickly for a moderate cost is strong motivation for those couples willing to make the commitment.
You are out to get the most you can in the division of assets, assumption of liabilities, allocation of support and rights to the children. Everything you have worked for in your entire life is at stake; everything important to you is at risk. But, unless you are ready to give as well as take, mediation will end in an impasse. The mediator can only suggest alternative ways to settle problems that may stalemate you. The mediator has no power to force a resolution on you, and your spouse has veto power in mediation.