Mediation can be a cost effective way to resolve issues without having to go to court, but it’s still nice to be able to choose whether (or not) to participate in any mediated processes. For one thing, mediators vary wildly – some are attorneys though most are not; some have familiarity with difficult personalities and others do not; and so on – which can impact the likelihood that the mediation will be successful at all. For another, mediation may work better with some personalities than others.
It’s a generalization, but, in my opinion at least, mediation is often less successful when you already have an abusive dynamic. The abuser will go into the mediation thinking that he can strong arm you into whatever scenario he prefers. (In his defense, this has always worked before!) For your part, you may be tempted to capitulate; after all, his anger and aggression is intimidating. Even if you don’t, though, that doesn’t mean that it’s a safe or healthy for you to be in that particular room.
So, what do you do?
If mediation is required by the court, it’s required by the court.
Well, first thing’s first: some courts do require that you participate in mediation before your case can be set on the docket for a hearing. It’s just the court’s way of trying to rid itself of involvement in any cases that don’t truly need a judge to intervene. It’s also a way of trying to prioritize people resolving their own disputes. It’s convenient and, in a lot of ways, it makes sense.
That doesn’t mean mediation is always a good idea or that it’s always destined for success. It is not. The trick, I think, is to knowing whether – in your situation – it’ll help or hurt, and then behaving accordingly.
You may be required to participate which means that, no matter what, you’ll need to go so that the case can be set for trial. So, you go. Right? No choice there.
Just because you are court ordered to participate in mediation does not mean that you are a hostage or a prisoner. You are free to leave.
But that doesn’t mean that you have to stay for a specific period of time or that you cannot leave once negotiations begin. You are not required to stay. I have heard some horror stories of mediators who make it sound like the wife/mother would be in violation of the court’s order if she left and implying, basically, that she was being held there like some kind of prisoner.
Not only can you bring your own attorney, if you want, but you can also refuse to stay. You do not have to put up with threats or demands; you are not a prisoner, and you cannot be held against your will. By showing up, you have participated in the mediation. At the point that the conversation becomes unproductive – or, worse, counterproductive – you are free to state that you do not agree and leave.
You are not stuck. You do not have to reach an agreement. You do no have to tolerate abuse. There are not a certain number of hours that you must sit there to prove that you participated. (However, though, if I were you, I would participate in good faith before I left. I wouldn’t show up, say hello, turn around and leave.)
Okay – you’re there. You’re at mediation. What now?
I often recommend – before clients participate in mediation, whether court ordered or not – that they meet with an attorney first to discuss a range of possible alternatives, so that they can go to mediation prepared to have a full and complete discussion. Whether we’re talking about a separation agreement or a custody agreement, the details really do matter. Not only that, but your soon-to-be ex/your child’s father is a unique person himself, so there may be specific issues that you’re dealing with that could be effectively addressed by your agreement. Knowing what options you have can make you more effective (and much, much more confident) in negotiations.
After mediation, too, it’s often useful to consult with an attorney to make sure that your agreement covers everything. Mediators are often not attorneys and, even if they are, they are not employed in that capacity when they are serving as mediators. Also, agreements can’t usually be un-signed later, so you’ll want to get it right now, or else you may find that your options to fix it are somewhere between ‘extremely limited’ and ‘absolutely none’.
You don’t have to agree. I’ll just say it again. You can be down to the very last, bitter end and one thing can derail the entire negotiation. It’s easy to get tired or hungry and become less fierce than you would otherwise be. It’s probably also wise to bring a snack and/or some water along, to minimize normal fatigue or overwhelm that you might experience.
The same goes for him, too. He doesn’t have to agree with you, either; an agreement only works if it’s reached mutually. You’ll definitely want to approach him diplomatically, especially with respect to touchy issues. You may only have success with some provisions, too – like unrelated overnight guests or a right of first refusal – if you make them mutual in nature.
We like to say that the only limitation when it comes to an agreement is the creativity of the drafters, so its ideal if you come to the table with ideas. Failing that, of course, you can always leave, no matter what your ex or the mediator tells you.
For more information, to request a free copy of our divorce book, or to register to attend an upcoming seminar, give our office a call at 757-425-5200 or visit our website at hoflaw.com.