When a Divorce Mediation Does Not Lead to a Total Agreement

Posted on July 7, 2010

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Clients who are interested in Divorce Mediation will ask if mediation makes sense even if there will be issues that are not able to be resolved via mediation. Does it make sense to mediate if e.g. only 8 of 10 issues will be resolved via mediation? I believe the answer to this question is in the affirmative. Divorce Mediation serves many purposes and in discussing this question with a client, the true benefit of mediation will become apparent.

Litigation is costly and traumatic. People choose to mediate in order to reduce anxiety and legal costs. They also may prefer the Win-Win approach that mediation represents. Even if there is agreement only on some of the issues in dispute, mediation will have served the purpose of lessening dispute, lowering eventual attorney fees, and making it clear to both parties that the matters in dispute are neither unduly numerous nor legally overwhelming. The fact that many issues were indeed resolved via mediation will make agreement on the remaining issues that much more likely. Studies support such a conclusion.

Incomplete agreements show the parties that consensus on some issues was indeed attainable. This gives the parties the confidence to continue their communication into the future. Nothing succeeds like success. It is indisputable that agreement was attained because of the “good will” of the parties. The residual “good will” hopefully will continue until the final agreement will eventually be reached. Even in the cases where the disputed issues will need to be submitted to the Court, the level of rancor and confrontation will have been dramatically reduced.

Finally, mediation teaches the parties that they possess the ability to communicate positively and civilly. This communication skill will be needed even after the divorce if they are co-parents or if unanticipated issues eventually arise. Giving this gift of positive dialogue to a divorcing couple is perhaps one of the greatest gifts any mediator can bestow.

Incomplete agreements will sometimes be the end result of divorce mediation. However, the legal fees saved, the “good will” created, and the positive communication experience will all serve the clients well both in the short-term and in the long-term. Divorce mediation is a multi-faceted process and it works, even when it leads to an incomplete agreement.

Much has been written lately about the extreme partisanship of national politics. The Rolling Stone magazine has given us an insight into the pettiness of the politics of war. Gamesmanship is all over. The idea of two divorcing parties seeking to talk through their differences is the polar opposite of such behavior. The attempt is noble. Even if the negotiation fails to resolve all issues, one cannot deny that the process is one that is worthy and ennobling. This is true even if some issues were unable to get resolved.

Martin Rosenfeld is a Family Attorney and Divorce Mediator, practicing in Fair Lawn, NJ.  His website is www.NJMediationWorks.com

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