I had two contrasting experiences with mediation this week. Yesterday I served as judge pro tem mediator on a divorce case. The case was one of a 25-year marriage with two children (one minor) and three pieces of real estate. The case settled in full after a three-hour mediation. Each party in that case will likely save $10,000 to $30,000 in legal fees they would otherwise have spent preparing for trial but for the settlement reached yesterday.
Today I represented a husband at a divorce mediation involving a 29-year marriage, one minor child, two pieces of real estate, and several retirement accounts. The result — no issues settled. Each party will likely now spend $20,000 to $30,000 or more in additional legal fees preparing for and handling the trial of the case a couple of months from now. In the end, both the husband and wife will probably also be somewhat dissatisfied with the trial result. Putting really important decisions in the hands of a judge who only has a few hours to learn about you, your kids and your stuff can be very unsettling.
Why the difference? Was the mediator in the successful mediation simply better than the mediator in the unsuccessful case? Were the lawyers in the successful case more competent or prepared than those in the unsuccessful case? In my opinion, no. Both mediators are experienced, competent family law attorneys who understand the law and nuances of tough divorce cases. The attorneys on both cases were knowledgeable, prepared and open to reasonable compromise in order to reach a settlement.
The difference in the two cases was the parties. In the successful case, both the husband and wife came prepared to make concessions in order to get the case resolved. They were motivated to settle and move on with their lives. They were NOT out to get revenge.
In the unsuccessful case, by contrast, the wife simply was not ready emotionally to settle. Instead of making financial decisions based on a logical, cost/benefit analysis and based on what is reasonable under Arizona law, she was motivated by a desire to punish her husband for what she saw as his wrongdoing. Because she was driven by vindictiveness, she was unable to make good decisions about appropriate settlement terms. She maintained unreasonable positions and left the husband with no choice but to proceed to trial, where the result could not possibly be worse for him than the terms on which the wife was willing to settle.
Some benefits can still be realized from a mediation that does not result in a complete settlement. Sometimes the issues can be narrowed for trial. The lawyers may agree on information and documents that need to be exchanged before trial. In my “unsuccessful” mediation today, I felt I learned some valuable information about the positions the wife would be taking at trial and about what we would need to do to make our best case at trial. The optimum outcome of any mediation, however, is a complete settlement of all issues. For that to happen, both parties need to come truly prepared, emotionally and otherwise, to reach a deal.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.
