Why Bother with Mediation?

Posted On May 3rd, 2016 by Michael Dunham

[Ed: Originally published on Facebook.]

Maybe you think your spouse is too hard-headed to make mediation worth your while. You may be willing to give in to just about every demand he has, just to get the case over and done with – but you know he still won’t settle. So why bother?

First and foremost, of course, you could be wrong. Your lawyer almost certainly has a story or a memory about a case he was sure wouldn’t settle, but then it did. Sometimes all the other side needs is a chance to vent and feel he has “been heard”, and maybe mediation will give him that outlet. Be open-minded about the process; you might surprise yourself.

Second, you can still learn a lot even when the case doesn’t settle. You can learn what is important to your spouse and what is not. That can be valuable information when you’re trying to prepare for trial. You may even be able to narrow some of the issues – if you agree on child support (for example) and property division, but not on child custody, then you at least know where you need to focus your energy for the trial, which can make it take less time (and cost less).

Finally, if nothing else, be sure you document what offers you make in mediation. As your mediator will tell you, what is said in mediation, stays in mediation. But, there is a bit of a loophole, in that if you have proof that you are willing to settle a case in a certain way, and then later you are able to do even better at trial, you can use the settlement discussions as evidence that your spouse is the one who forced the parties to go to trial, which can sometimes give the judge enough authority to allow you to recover your attorney’s fees.