BAD REASONS TO FOREGO MEDIATION, #1

You are getting (or have been) divorced. Haven’t you fought enough during the breakdown of your marriage to last you a lifetime? Don’t you want to be done? Mediation is your best option.

In my practice I have encountered at times people who have resisted or declined to mediate their family law issues. While there are some valid reasons for not mediating, the most common ones do not fall into that category.

Here is one of those.


“He’s so unreasonable it’s pointless.”

The thought here is that your spouse has been inflexible, combative and unreasonable in the litigation that he (and/or his counsel) that efforts at settlement are a waste of time. This presumes that your spouse has no desire to settle. He may be vengeful; she may want to be vindicated by a judge seeing what an ass he is; it may be the attorneys’ relationship.

Of course, courts don’t exact vengeance. The judge doesn’t care that you were married to a philandering jerk. And you should never have to go trial because the attorneys cannot hold a civil discourse.

Mediation can help with all of these issues as you and your spouse get to see your case through the lens of a trained neutral. In my case, a trained mediator with over 40 years of litigation experience. You don’t have a problem I haven’t seen before.

The confidentiality of the mediation process allows for an exchange of ideas in a safe place. Your unreasonable spouse can speak freely knowing that he is not abandoning his obdurate posture. Even the most antagonistic of attorneys will commonly try to behave rationally during the process.

In this situation a primary benefit of

mediation is the opportunity to get to the Why of their intransigence. Courts are concerned with the What; a limited set of relevant facts. It is every difficult to puncture the shell of unreasonableness without knowing why it exists. Once you have that understanding you have the opportunity to address it. Mediation is the proper forum for doing so.

Another benefit in this situation is that it can only help you for the unreasoning party to hear an impartial viewpoint of their positions. It can only help for them to be presented with some options for resolution which may not have been previously presented. Divorce is emotional. Judges may care but they cannot deal with that. But it is emotions; fear, anger, hubris, which make for the unreasonable party. Mediation is your best option for constructively moving through those toward a fair settlement.

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