Although mediation is usually considered more favorable than litigation and is one of the most popular alternative dispute resolution techniques, sometimes it is not in the best interest of the parties to pursue this route. Even if they are both willing to talk, there can be several issues that cause mediation to be counter-productive.

There are several reasons it would be smart to delay or just avoid mediation:

When there are ulterior motives or a lack of motivation on one (or both) sides:

  • The Primary Purpose for a Fishing Expedition – if one party attends mediation only to benefit their case by learning all about what the other party wants, with no real intention of settling.
  • There is Significant Resistance to Settlement – if there is a lack of motivation to settle or one party has nothing to gain or everything to lose from the mediation, it may be in their best interest to try and maintain the status quo in which case mediation will not be effective.
  • There is Primary Desire for Vengeance – should one party come into the process with polarity or a desire for vengeance, the mediation is sure to fail. The ability to stay fair and reasonable is just as important as the willingness to communicate in mediation.
  • There is Significant Inflexibility Due to Unrealistic Expectations – it is imperative that both parties come into the mediation with an open mind. While they can know what they ultimately want, flexibility and willingness to see the issue from the other side’s point of view will help make the process smooth and fair. Being extreme and rigid defies the point of mediation.

However, mediation should not merely be avoided because any combination of the above desires and intent are merely suspected or known.  The key words above that should be govern are “Primary” and “Significant.”  This is because most cases will settle if they parties if the parties are also open minded and willing to be flexible to some degree.

When mediation is not a priority:

  • When One of the Parties is Unavailable or Disinterested – while Skype can be a useful tool in communicating with the other party in the divorce, mediation through a video platform can be difficult and frustrating.  Much of what mediators are trained to detect surpasses verbal discourse and catching onto behavioral cues and body language is rarely effective when the party is not physically present.
  • Unavoidable Scheduling Conflicts – mediation can take a long time. Especially when one party decides to leave due to a prior commitment two hours into the mediation, it can hurt the process and the ability to settle. All prior commitments should be disclosed promptly and both parties should make the mediation a priority.

However, it has been our experience that these issues can and will usually be overcome as a case goes on.  Early in a case one or both parties will be “unavailable” or show little interest in mediation, but this will change overtime.  As a case goes on, it is very common for both parties to some degree to become more interested in settling the case in mediation.  This is usually because the parties learn more about where they stand with each other and they may grow wear of the divorce process (discovery, litigation, hearings, negotiation, and paying attorney’s fees).

When one party feels inferior:

  • History of Abuse – if there is a history of antagonism, control, abuse, or violence, mediation is the wrong choice.
  • Lack of Respect – both parties need to feel like they have an equal say in the process and that their opinion and wants/needs matter. Even subtle cues that show disrespect could send the whole thing into a tailspin.

However, it has been our experience that when a client that feels disrespected or unsecure in their position will benefit from strong attorney representation, leadership and guidance.  Therefore, mediation should not be avoided merely because of the issues above unless there is no good option to get around them.  For example, if mediation is held at a courthouse (frequently court ordered), very good security will be present.  In addition, the parties can usually be kept separate and may never even actually see or hear each other because they can be kept in separate rooms.  Also, mediation can be telephonically or over Skype if court ordered or if the parties agree to this arrangement.

When it isn’t the right time:

  • Lack of information – if discovery is incomplete or there is unverified financial information, it is in the parties’ best interest to hold off on mediation. If there is any mistrust involved in the mediation, a lack of information can add flames to the fire.
  • Bad timing – if either party isn’t emotionally ready for the mediation process or the discovery process hasn’t been fully and/or properly conducted, mediation should be delayed.

While most courts order domestic cases to gro through mediation before any hearings or a final judgment and it can be a great alternative to litigation, sometimes mediation is not the right choice, even if both sides are willing to talk.

Updated: 2019-02-16