There is much to know regarding mediation and family law, not all of it pleasant. Now that mediation is entrenched in the practice of law (particularly in family law), everyone in the system, from judges to lawyers to parties to the mediators themselves, has developed ways to game mediation. Which is why mediation is now falling out of favor, despite the efforts of certain mediators.
As I have stated before, mediation works for people who want it to work. There is no shame in this, but there is shame in mediators refusing to acknowledge the inherent limitations of this practice.
But instead, mediators tout as almost magical mediation’s (unfounded, untrue) “inherent” abilities to bring about synergistic win-win settlements that everyone is happy with in a fraction of the time and cost that litigation would consume. The mediators refuse to acknowledge that ideal mediated settlements–which is what most mediators promise the public when marketing their services to the public–only come about when parties want to reach ideal mediated settlements, not through any innate virtue of the process itself.
Now that the public is getting wise to these overblown promises, mediators are changing tactics and their marketing message. Rather than promising that mediation will virtually always bring about good fast cheap solutions, mediators now claim that even when it fails it succeeds. Other mediators claim that when mediation fails it’s because the parties failed the process. Cute. This is also why we are seeing new terms developed to replace mediation as it falls out of favor. Terms such as “collaborative law,” and “integrative law” that are essentially the same and (except in the most expert hands) function no differently, but do have the temporary advantage of seeming novel through nomenclature.
Remember that you heard it here first, folks: the Golden Age of Mediation, if ever there was one, is past. As with so many good things that have fallen out of favor by becoming corrupted, mediators over promised and under delivered (they had to–what they promised was impossible), and they are now, deservedly, losing the public trust. And yes, so are lawyers (indeed, they lost it long before).
Before any of you who read my comments assume me as being anti-mediation, know that I am myself a mediator and also a divorce attorney who encourages clients to mediate when I feel that it is a worthwhile tool, which it is for some, not all.
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