Collaboration/Martin Rosenfeld, JD

Posted on July 10, 2016


A mediator is accustomed to the concept of compromise, looking for shared ground, Win-Win, etc. However, a party in a divorce mediation well feel that the other party will take it as a sign of weakness if their opposing party starts discussing possible grounds or a resolution of the dispute. “Why should I make the first move in trying to reach a settlement?” may well be thought (if not expressed) by the party willing to start the process. The mediator needs to set the tone for such open dialogue. However, an attorney can also do much to facilitate such behavior by reaching out to her/his client. A possible approach would be to say what the party may already be thinking: “We believe in getting to a proper resolution of the issues in dispute. Someone needs to take the first step. In the spirit of reaching an agreement, my client would like to propose X.” There are time that a party simply needs to say what it is that they are planning to say, and why they wish to say it. In the mediation process, open dialogue militates in favor of more discussion rather than less discussion. Hiding the ball is not a wise strategy in mediation if the ultimate goal is Win-Win.

Mediate don’t litigate.