Mediation–sometimes a solution; sometimes a problem

>Vermont courts are promoting mediation as a solution to the explosion in family court filings. Mediation can be a great solution, but sometimes can be a problem. Here are the pros and cons:


1. Parties who can work out their differences often find better solutions than a court will, because the court will never know the family and its needs and dynamics as well as the parties.

2. Avoiding contested hearings has a net positive effect on parties and on children. Divorce or other type of family separation are traumatic for children. Contested issues that are decided by the court make the trauma even worse. Fighting between the two people your children love most in the world is an awful experience for them. And you will have to deal with your former partner probably for the rest of your life, in one way or another. The bitterness that results from a contested hearing can last for years, and affect the relationship with your former partner adversely.

3. Mediation is usually a great deal less expensive than litigating issues in court.


1. If there is a power or knowledge difference between the parties, the more powerful or more knowledgable party will likely obtain a more favorable agreement than he or she is entitled to. I find that it is common that the spouse who does not like confrontation often walks away from a mediation with far less than he or she would be awarded in court–and lives to regret it later, particularly when his or her former spouses remarries, and the new spouse enjoys the fruits of the favorable divorce settlement.
2. Mediators are usually not lawyers, and some agreements drafted by mediators are poorly drafted and cause problems later when a court has to interpret the agreement.
3. Mediation should never be ordered (although it often is) when there is a violation of a court order and a party has filed a motion for enforcement or contempt. I have seen cases where a party has filed a motion for contempt because the other parent is not allowing parent child contact, and the court orders mediation before hearing the case. The case then drags on for months while the noncustodial parent does not see the child. The parent who is violating the order has no incentive move the case along. Why should a party who is the victim of a violation of a court order be required to mediate the court violation with the offending party? It makes little sense.

Solutions to mediation problems: First, if you are going to mediate, make sure you have an excellent mediator. Good mediators will sense the disparity in power and protect the more vulnerable party. Mediators whose only goal is reaching agreements should be avoided.
Second, make sure you have all the information you need. For example, if the mediation involves property division, you should have all the financial information concerning income and assets of the parties before mediating. I always advise clients that the party who knows the most has the best result in mediation. Third, if you are feeling vulnerable in mediation, bring an attorney along–or if the mediator allows, another person for support.

In addition, have an attorney draft the agreement between the parties, or at least review the agreement you have reached. A clear agreement that reflects the parties’ wishes and takes into account all the issues including future contingencies can save future costly litigation.

Finally, if in your final agreement, you agree to mediate any future disputes before going to court, make an exception for any disputes involving violation of court orders. That way if a party is violating an order, you will not have to wait for relief while you attempt mediation.