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Five Myths of Mediation

Rachel Alexander April 17, 2019

{6 minutes to read}  There are 5 common misbeliefs about mediation that may be preventing divorcing people from accessing this cost-effective, humanistic approach to divorce. Let’s clear those up now!

Misconception 1: People Have to Have an Amicable Relationship in Order to Mediate

Fact: A skilled mediator can work with high-conflict clients who neither agree nor get along. All that is required of the parties is a shared willingness and commitment to mediate. This may simply rest upon a shared appreciation that mediation is the best, most cost-effective way of handling a divorce. Divorce can be terribly unpleasant, sticky and adversarial in the best of situations. But it is not the parties’ job to fix or figure out their communication or their relationship prior to coming to mediation.

Misconception 2: Only Parties Who Have Already Made an Agreement Can Come to Mediation

In fact, the opposite is true. It is best if parties come to mediation first before attempting to hammer things out themselves, as in this inchoate phase they are without the guidelines of correct, legal information. Agreements cobbled together by parties uninformed of the law or their basic rights and obligations often must be unwound during the initial hours of mediation. The mediator often has to take significant time disabusing clients of the erroneous premises upon which their agreement was based and more time still to help the parties loosen their grips on that to which they have innocently, inaccurately agreed.

Misconception 3: Mediation Is Only Good for Parties Without Children

In fact, for parents focused on their children’s wellbeing during and after divorce, mediation is the best approach. Mediation is both client and family-centered. In mediation, clients explore ways of healing and stabilizing the family unit as well as attending to the attachment and developmental needs of their children.

Where litigation dysregulates and segregates the family members, mediation unifies and repairs.

Parents who mediate set a living example of grown-up, self-determined conflict resolution for their kids. All issues from parenting plans, custody arrangements, child support, extra-curricular activities, college funding, and pick ups and drop offs are addressed in mediation. With both parents contributing, the result is an informed, detailed parenting agreement, sensitive to the specific strengths and needs of each child concerned.

Misconception 4: Mediation Is Only Good for Parties Without Complicated Assets

Complex assets may include such things as unvested stock options, closely held businesses, foreign assets, commercial real estate, and assets that are only partially marital in nature. Complicated assets can be dealt with in the mediation context more judiciously than in litigation.

In mediation, when an expert is required to value a business, for example, the parties may elect to use a joint expert, thereby limiting costs of “dueling experts” (i.e. multiple experts in disagreement).

Clients may elect to use an expert in a limited way, for example, having the expert produce an informal analysis, rather than the prescribed report that the court would require. This can still provide adequate information for the clients to rely upon while shaving off thousands of dollars and significant man-hours required for a more formal report. The expert can work with the parties and mediator to interpret her findings, which may help clients make decisions accordingly.

There are occasions when parties may elect to forgo valuations altogether in favor of bypassing the valuation process and stipulating to a value they each deem equitable under the circumstances. While this is not recommended (because it leaves the asset’s value undetermined), mediation honors the clients’ rights to make informed, individual decisions, and waiving their right to valuation is among their rights to waive.

Misconception 5: Even With Mediation, You Will Still Need to Spend a Fortune on Attorneys

When parties mediate, they dramatically limit the necessity of using separate attorneys. Most mediation clients will use attorneys to consult with periodically during the process and to review the final agreement drafted by the mediator. There are neither limitations nor mandates to use outside attorneys. As mediation is founded upon the client’s right to self-determination, the choice as to how to utilize outside counsel is ultimately at the discretion of each client. In the transparent, supportive mediation environment, use of outside counsel is discussed and recommendations are made.

Mediation is a great venue for resolving complex, simple, hostile, amicable — every sort of conflict — provided there are two willing participants. Parties need not to agree on a single thing other than this: Mediation is the way to proceed. This is essentially the one agreement from which all others flow.