Difficult Mediation Cases/Martin Rosenfeld, JD

Can mediation work between a wife and husband in a divorce action, where communication is poor between them? The simple answer is “yes”. The more complex answer is “What alternative is there?”

A trained mediator can get a couple with poor communication skills to mediate successfully by creating a safe and nurturing “space” for the mediation. The fact that mediation is faster and less costly than litigation adds a motivation for the couple to bridge the communication gulf that separates them. This is especially true where areas of commoon interest such as “co-parenting” are discussed.

The skilled mediator can elicit discussion by questions that zero in on the needs of the two parties. Few people will pass up the opportunity to discuss the nature and extent of their needs. In addition, mediation will help the couple develop better communication skills with which to face future disputes. This is a more useful skill than learning how to get into a litigation mode every time a new challenge is presented.

Nobody getting divorced wants to get into future wrangling once an agreement is reached. However, studies show how mediated agreements often result in full, future compliance. This is not true for agreements reached the the adversarial model of litigation. Studies consistently show that compliance with mediated agreements is close to 90%. The rate of compliance with agreements effected by the adversarial approach is a good deal lower. (As an example, a Colorado study showed that parental disputes that had been resolved by litigation were 50% more likely to be re-litigated than agreements reached by mediation.)

Should a couple with communication difficulties mediate or choose to litigate? If having lower cost, less trauma and quicker results is important, mediation makes sense. Litigation does not.

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