Top 4 Barriers to Mediation

by Christina L. Scott, JD

#1 Discovery - One of the greatest barriers to settlement in mediation is

lack of relevant documents or incomplete discovery. It is extremely difficult

to make a financial offer without sufficient proof of the financial standing of

each party. For example, alimony or child support cannot sufficiently be

established if both parties have not produced w2’s, check stubs, tax returns,

profit and loss statements or the like. Being unprepared without these

documents can severely hinder the mediation process and waste valuable time,

not to mention cause undue frustration for everyone. Mediation can be an expensive day for the parties and using mediation time to engage in discovery is not a good use of

resources. Be sure to fully and adequately complete all necessary discovery

before attending mediation to ensure a more efficient process.

#2 Mind Set - The second greatest barrier to resolution is Mind Set. Each

party must self-assess and ask “Am I truly ready to move forward and get it

done?” If the answer is “Yes”, then it’s a great time to schedule a session. If

the answer is “No”, it may not be the best time to Mediate. When parties are

NOT truly ready to move forward, they will subconsciously hinder the process by

taking unreasonable positions or asking for things that may sabotage the process.

It is not the job of the mediator to drag parties along kicking and screaming

against their will….instead the process involves parties being self-determinate

and knowing exactly what they want and need. Therefore, timing of mediation is everything! Be sure that your clients are emotionally ready to move forward before

participating in mediation.

#3 Antagonizing, Bullying, and other Games - Divorce is considered to be one of the top 3 most stressful events in a person’s life. Unfortunately, some parties take

advantage of this and make it their goal to use the mediation process to

antagonize, bully, and exacerbate the other party. Tactics like these are counter-productive and unnecessary. Even if you are not participating in mediation voluntarily, strive to come with a positive attitude and in good faith. Good faith involves a

sincere intention to operate in truthfulness, honesty, full disclosure, and

high intent. Operating in good faith does not guarantee settlement but it can

increase your chances of settlement and set the tone for productive and ongoing

negotiations to ultimately resolve your case outside of court.

#4 Lack of Preparation - When participants are not prepared for mediation, they are prepared to fail. Many attorneys prepare their clients for mediation with the same amount of diligence and detail that they would use to prepare them for trial, and this is a great practice. It is essential that your clients have an understanding of all the important aspects of the mediation process such as coming with a willingness to negotiate, having an open mind, what documents might be needed, the length of time mediation could take, the fatigue, the cost, and other relevant points. In my experience, participants who are prepared for the process are 5x more likely to have their cases settled. Preparing clients adequately for mediation is essential to its success.

**AI was Not used in the creation of this article