At the outset, know this: I am not anti-mediation.
I am a trained mediator. I earnestly participate in mediation conferences with my divorce clients.
Notwithstanding, the mediation profession at large needs to grow up and take a hard, honest look at itself and stop trading on its aspirations.
For far too long divorce mediation has tried to get by (and has in large part succeeded) on good intentions. As if good intentions were reason enough to justify billing vulnerable, desperate clients. Meaning well is not doing well. Good mediation is good, but mediation is not inherently good.
Divorce mediators need to acknowledge these facts to their clientele without fear that such candor will drive people away:
- Mediation rarely works as advertised. Accept it. The public is catching on. Soon you won’t be fooling anyone anymore. Mediators, a precious few of you are miracle workers with the healing, golden touch. As you well know (but won’t publicly grapple with), most people settle in mediation not because the mediator was a settlement wizard but because the divorcing couple doesn’t have the money to litigate and they just want their divorce case over with.
- Rather than “thinking win-win” and “focusing on interests instead of positions” and all that hackneyed blather (accept it, mediators; your lingo needs work), people in mediation compromise, compromise, compromise until they settle out of exhaustion, motivated by a fear of endless litigation and cost. Oh yes, and they see the meter running in mediation and that motivates them too (i.e., “Let’s see: I’m paying around $200 or so per hour for my lawyer, around $100 to $150 per hour or so for half the mediator’s fee, so mediation’s costing me at least $300 per hour; you bet your boots I’m motivated to settle, and fast.”).
- When courts force people into mediation (as they do in Utah, where I practice), mediation already has one hand tied behind its back because it’s human nature to resist being compelled to do anything, even if the thing one is compelled to do is good or has the potential for doing good. Mediation is not truly mediation if it is not a completely voluntary process among all participants. Compulsory mediation is a mild form of judiciary coercion, which is inexcusable and intolerable, no matter how well-meaning the compulsory mediation proponents act.
- Mediation works for parties who place the value of resolving conflict ahead of personal interest, which is why mediation works well for so few people (and notice my use of the phrase on “well for so few” and not “unfailingly for all”). Divorce litigation benefits few people too, but in a perverse way it works, in large part because it has nothing and nowhere to hide. Expectations of litigation for quick, fair, amicable resolutions are low, as they ought to be. Litigation thus has the (ironic) advantage of being trusted because it does not pretend to be something it ain’t.
Basing mediation’s virtues on good intentions (i.e., “mediation works because mediators want peace and voluntary agreements between adversaries”) and best-case scenarios is no different than claiming a stopped clock is valuable because it shows correct time twice a day.
Mediation is plagued by big flaws (and the flood of hack mediators coming into the market is only aggravating the situation). It’s well past time (and likely well past hope) that good mediators examine and correct them instead of pretending they aren’t there and/or whitewashing them. It’s time for courageous mediators to innovate and stop contenting themselves with mere alternative dispute resolution, but substantively superior dispute resolution.
To speak to an attorney on whether or not mediation will work in your Divorce case, please contact us at 801-466-9277 | firstname.lastname@example.org