When Mediation Fails

It really breaks my heart when mediation fails – not only because Frank and I put so much time and effort, heart and soul,  into each client relationship – but mostly because efforts to peacefully separate deteriorate drastically when one party or both decide not to follow through with the mediation process.

Sometimes people come to us and tell us that they agree to just about everything – they just have to put it on paper.  Invariably, within 15 minutes they are disagreeing about some aspect of their divorce.  We always let clients know that they are in control of how long the mediation process will take.  If they can reach agreement quickly, so much the better.  The fact is, most negotiations take some time.  Even so, mediation need not be a long drawn out process. 

When our clients sign an Agreement to Mediate, they agree not to take pre-emptive maneuvers because, as we explain to them, doing so destroys the trust that they build during mediation sessions. 

Recently, we had clients whom we had seen for three visits.  Progress had been slow, but they were indeed taking important steps that would get them to an agreement that would meet the needs of their children, and would set both of them on a solid financial path. 

But, invariably, once they left our office, they resorted to their unproductive communication and tactics that threatened each week to destroy any real progress they had made in mediation.

A couple of days after their third session, we received a call that she had taken the children, who had been living with their father, and refused to return them.  Even when the day arrived that would have been his scheduled day to have the children, she refused to bring them to him.  This was the result of his continual refusal to accomodate her request for equal parenting and custody.

The situation escalated when she went to their marital domicile, where he had changed the locks, to retrieve items that she felt belonged to her.  A heated argument ensued, she attempted to call the police and he grabbed the phone from her.  He was arrested and she was given temporary custody.  He is now facing a court date and lawyers fees that will probably exceed $25,000.  Mediation may have cost him $1500 – $2000. 

This is what we try to prevent in mediation.  Mediation is not an easy process.  It requires honest communication and the desire to work through some difficult issues to reach agreement.  Mediation often seems a slow and, to some divorcing couples, an expensive process.  Compared to hiring lawyers and fighting in court (which can take years and provide the lawyers with a good income), mediation takes relatively little time.  Most mediations can be completed in two to three months.  Some take less time.  Some a little more.  I have rarely met someone who is happy with the settlement they receive through litigation.  Many people come up with unique solutions that work for their situation by using mediation.  If you don’t create your own workable solutions, an attorney or judge will decide.  That is a far from optimal way to divide assets (and children).

It is very sad when parties do not see the mediaton process through to the end.  There is so much to be gained for the parties and the children. 

My advice to those thinking of using mediation is:

  • Choose a seasoned, qualified mediator.  In Rhode Island, you can find these mediators on the website of the Rhode Island Mediators Association at www.rimediators.org.
  • When you start mediation, fully commit to the process knowing that it will not be easy and will require you to address issues that you may not really want to deal with.
  • When it seems discouraging, stick with the process. Often when things seem the bleakest, it is followed by a creative and workable solution.
  • Remember, mediaton is voluntary.  It takes two willing parties to initiate and maintain the process.  Don’t be the party that calls it quits when it is difficult.
  • Trust and listen to your mediator.  We are here to support and encourage you.  We want for you to reach a good agreement.  This is what we live for.
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