When Mediation Works, and When to Avoid It

Mediation can be a tool to resolving your civil or family law dispute quickly and inexpensively. You might decide to work with a mediator to resolve your dispute without court involvement, or a judge might have ordered you to attend after the case is started. Either way, find out when, and how, mediation work best, and what to watch out for to signal this form of alternative dispute resolution isn’t right for you.

When Can You Use Mediation?

Parties and courts use mediation as an alternative to traditional litigation in civil and family law cases. As a form of “alternative dispute resolution”, mediation takes parties out of the courtroom and gives them the space they need to resolve their disagreements with the help of a mediator. Sometimes, it can replace traditional court processes entirely. More often, however, it is used to cut short time-consuming and expensive litigation, avoid trial, and save both parties money on attorney fees.

Family Law

Mediation can be used at any point along the way in a family law matter. Some co-parents use mediation to set a custody and visitation schedule without going through the formality of the court system. Others have their divorce or custody dispute referred to mediation while the case is pending to avoid having to go to trial. Still others use mediation to resolve disagreements that arise in how their judgments should be interpreted or carried out, or to decide when changes need to be made to address their children’s needs. Mediation can be used to address:

  • Custody and visitation
  • Child support
  • Spousal Support
  • Property distribution in divorce
  • School enrollment
  • Disagreements over medical treatments for the children
  • Post-judgment modifications to custody and visitation orders

Civil Justice for Victims of Crime

Victims seeking justice in the civil court system can also use mediation to avoid litigation, reduce costs, and possibly resolve their cases quicker. For victims of crimes, mediation can provide an opportunity to reach non-monetary settlements that otherwise would not be an available outcome at trial. For example, a victim of domestic violence or sexual assault may seek an apology or explanation from their perpetrator. Or a victim could seek policy or systematic changes from an institution that contributed to their harm.

When desired mediation outcomes are more than money, it is important that the survivor chose a trauma informed mediator. The mediator must be able to perform the mediation in a way that recognizes the dynamics of the abuse, respects the healing process of the survivor, and values the non-monetary relief requested by the victim.  

What Mediation Looks Like

For most, the idea to mediate comes from one of the parties, or their attorney’s suggestion. The parties can agree or even use the mediator to outline which issues will be mediated.

On the day of your mediation, you should expect to be welcomed to the facility, which may be a lawyer’s office, and made comfortable. Sometimes, the parties’ respective attorneys will also be part of the mediation.  The mediator will then explain the process and any limits you or the court have set, and then will help you identify the issues and possible solutions to those issues. You should expect to be given an opportunity to explain how you think the case should be resolved and why, and to listen respectfully as the other party does the same. The mediator may meet with everyone at once, or “caucus” with each side individually. Certainly where restraining orders or issues of violence are present, the mediator must provide appropriate and safe accommodations for the victim.  Ultimately, the goal is to work through each of the issues and find a solution that everyone can live with (even if it isn’t what you expected or would have preferred).

When Mediation Works Best

Most lawsuits resolve without ever having to go to trial. In many instances, that resolution comes with the help of a mediator. This person is a trained, independent third party, who helps both parties explain their priorities and needs, weigh their choices, and work through their differences. However, some cases are easier to mediate than others. Mediation works best when the parties:

Come Prepared With the Information They Need to Make Key Decisions 

It is best to do your homework before coming to the mediation table. In the family law context, this could include: 

  • Creating a spreadsheet with all your financial accounts and retirement assets,
  • Collecting credit card and bank account balances
  • Getting pre-approved or investigating your eligibility for a loan or line of credit to buy out one party’s interest in the home, 
  • Vetting schools or child-care facilities and finding out whether they have a space for your children
  • Creating a household expense budget for use in deciding an alimony award
  • Identifying therapists or other experts that may help meet case-specific goals 

In a civil lawsuit, this preparation often includes identifying the costs associated with the harm done, and brainstorming non-monetary solutions that would give you the closure you need. To prepare for civil mediation, you and your attorney should:

  • Identify desired results
  • Gather supportive and compelling evidence to support your claim of damages in a civil case

Keeping the Focus on Practical Solutions for Recovery

If you are a victim of domestic violence or sexual assault, or a spouse in a messy divorce action, you may have justified and appropriate emotions wrapped up in the resolution of your case. However, these feelings of hurt or blame can sometimes interfere with a successful mediation. When that happens, you can end up facing your abuser or your ex-spouse longer as you and your attorneys work through the litigation process. 

It is important to try to set the emotional aspects of your case aside during mediation. Your mediator will be focused on what needs to happen moving forward to bring the case to resolution and what the parties need so they can accomplish those goals and priorities. To make mediation a success, keep your attention on what you need to be made whole, or what will happen after the order is entered. By focusing on the future, you will end up with a settlement that works.

When Mediation Doesn’t Work

Mediation can be great for resolving civil and divorce disputes, but it does not work in every case. Domestic violence, trauma, dominance and control issues, and other power imbalances can turn a tool for conflict resolution into a traumatic experience. That’s why every mediation should start with individual one-on-one domestic violence screening between each party and the mediator. This screening gives you the opportunity to explain what you need to feel safe and supported, and for the mediator to get a sense of whether you will be able to voice your opinions, needs and wants in the mediation. If you have been the victim of verbal, emotional, or physical abuse, or if you have trouble saying no to your partner, be sure to tell your mediator up front, so that she or he can respond appropriately to protect you and make sure mediation is right for you.

Mediation also doesn’t work when the parties are simply too far apart on some issues. If either party has decided to demand his or her “day in court” or takes an all-or-nothing approach, mediation will fail unless that party starts to compromise. Remember that most successful mediations require both parties to give a little on issues that may not be their top priorities. When one party brings ultimatums to the negotiation table, it’s a good chance that mediation won’t work.

Sometimes when mediation doesn’t work it is because the parties are working with someone without the skills and training to help them come to a resolution. The way a mediator facilitates the discussion and handles the needs and emotions of each party can mean the difference between a mediation that works, and a case that is going to trial.

At ADZ Law, LLP, we understand the value, and limits, to mediation. We can guide you through the process as advice counsel either participating in the mediation or giving you advice and counsel outside the mediation.  If you are in the San Francisco Bay area of California, we invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you.