If you have a competent mediator, the success of mediation depends on the attitude of the participants. I have never had a failed mediation in which all parties acted in good faith. Some of the behaviors associated with failed mediations are as follows:
– Blaming and punishing
– Hiding assets and information
– Attorney interference
Just like the mason who tears down his work and starts over and over again because one stone doesn’t fit just right, the stonewalling spouse appears to be working diligently to reach various agreements, only to change his or her mind once it appears that the major issues in dispute
have been resolved.
This behavior is often exhibited by a spouse who does not want a divorce and who uses this behavior (sometimes unconsciously) to forestall the inevitable. Unless the mediator recognizes and effectively deals with this, the couple will perceive that they are at an impasse and will leave the mediation in frustration, only to turn the job of resolving their divorce issues over to the court.
Sometimes stonewalling may be an indicator that a decision to divorce has been made prematurely, and one or both spouses are crying out to give the marriage another chance. I have seen several such stonewalling cases resulting in an agreement to seek marriage counseling or to take steps to resolve the conflicts within the marriage. Although mediation usually terminates quickly in such cases, these cases are among the successful mediations that have brought couples to an unexpected resolution.
BLAMING AND PUNISHING
Some people attempt to use mediation as a forum in which to blame the other spouse for the failure of the marriage. With this goal in mind, they often try to form an alliance with the mediator to punish their “bad” spouse for transgressions that occurred during the marriage.
Although it is sometimes helpful for an angry spouse to express his or her feelings associated with certain perceived wrongdoings of the other, it is the job of the mediator to direct the couple’s attention toward the issues that must be resolved in order to legally end their marriage.
Sometimes a brief divergence into the circumstances surrounding some of the difficulties that led
to the demise of the marriage can make it easier for a couple to work through the mediation process, especially if it leads to the expression of positive feelings or even an apology, but this requires tremendous skill and sensitivity on the part of the mediator.
It is the role of the mediator not to allow negative feelings to interfere with the couple’s perception of how to fairly resolve their divorce issues. A competent mediator understands that failed marriages are usually the result of the actions of both parties and will divert attempts to use guilt or blame as the basis for resolving financial or childrearing issues.
When one or both parties cannot get beyond the need to punish the other for their failed marriage, the punishing party will oft en seek court assistance to carry out their punishments. It may take years for the punishing spouse to learn that courts generally aren’t very effective forums for carrying out such punishments.
Attempts to punish should not be confused with discussions about bad behavior on the part of either spouse for the purpose of creating a fair agreement. Sometimes the acts of either or both spouses have financial or parenting ramifications that should not be ignored during the mediation process. The relevance of behavioral issues is discussed in detail in the chapter “How to Decide What’s Fair.”
In marriages with a long history of power imbalance-where one person makes the decisions and
the other goes along with them-the decision-making spouse may perceive mediation as a means of continuing to get what he or she wants, irrespective of legal rights or objective concepts of fairness.
These couples will oft en enter the mediation after having reached an agreement on all of the issues. Such an agreement will usually be extremely favorable to the more powerful spouse, but both spouses will assure the mediator that this is what they both want, and therefore this agreement should be adopted by the court.
As the mediation progresses, it oft en becomes apparent that the less powerful spouse knows that the proposed agreement is unfair, but will do anything to avoid conflict with the other spouse. This is especially likely when the weaker spouse does not have available financial resources to take the case to court.
The more powerful spouse knows from experience that if he or she just keeps at the other, the weaker spouse will agree to an extremely unfair divorce settlement.
In some jurisdictions, the courts will step in and refuse to approve such agreements, especially with respect to its effect on children, but some courts will approve just about anything.
In such cases, the only possibility of reaching anything close to a fair resolution is through the courts. Unfortunately, the less powerful spouse rarely perceives court action, or even the threat of it, as a viable option.
HIDING ASSETS AND INFORMATION
Sometimes a person will choose mediation over litigation because they believe that they can get their spouse to agree to settle without becoming aware of certain assets or information. Such an individual also often perceives the mediator as someone who can be duped, pushed around, or otherwise controlled so that hidden documentation never has to be disclosed.
Full disclosure of information is a mandatory part of the mediation process, and any failure or refusal to disclose documentation or information should immediately end it. Full cooperation and disclosure is a basic ground rule of mediation, and without it, no mediation can go forward in good faith.
A competent mediator will end the mediation if this becomes an issue. The parties will then have the option of going to court and having the court rule on whether or not certain documentation has to be provided.
Once this issue has been resolved by the courts, mediation is again possible.
Divorcing couples are usually more cooperative in working to resolve their conflicts than are their attorneys. Attorneys are trained to be positional and to simplify the issues into clear wins and losses for their clients. They are trained to avoid any losses and to fight to the bitter end to get the most for their clients.
Divorcing couples usually understand that they can’t have everything their way, and that negotiating in good faith brings other rewards like a quicker resolution of their divorce and less emotional and financial damage to themselves and their children.
Their attorneys don’t always have similar motivations. From the attorneys’ perspective, the longer the divorce takes, the more money they make, and the greater opportunity they have to show off their skills as a litigator.
It is not that unusual for a client to want to settle a case in mediation, but upon advice of counsel withdraw from the mediation and turn to the court to decide the outstanding issues. Rather then give up on the mediation, some couples are able to get beyond such an impasse by consulting with different attorneys about the issues in dispute and the progress of the mediation.
There should be a sense of progress as a couple proceeds with mediation. If either or both parties feel like they are getting nowhere after three or more sessions, or if they remain stuck on one particular issue, this should be discussed with the mediator. If such a discussion does not satisfy either party that progress is being made, it usually means that it is time to leave the mediation. It is not unusual to be successful with a second mediator even though very little or nothing was accomplished with the first mediator. This is because there are enormous differences from mediator to mediator with respect to quality of service and competence.