Mediation – The Down Side

By: Christa Banfield, Esq.

Last week I wrote about the pros of mediation. While I do believe there are many more pros than cons to mediation, there are certain cases where the cons may outweigh, making mediation difficult, if not impossible.

An extreme example is where the opposing party is unable or unwilling to participate in the process in good faith – often this may be due to them having either mental health or substance abuse issues. This is not to say that having those issues automatically makes mediation unsuccessful, but if you’ve been in a relationship with someone who lets these issues go untreated, you know firsthand how it can interfere with their ability to think and act rationally (which is likely a main reason for the divorce itself).

Related to the issue of mental health and/or substance abuse, remember that a mediator is not a Judge- they can’t order someone to do anything. So if you believe the other person needs drug and/or alcohol testing, a mental health evaluation, or to be required to show proof of treatment for same, and the other person does not agree, this can cause an impasse during mediation. In litigation, however, a Judge can order these things to happen, with consequences for not following through.

A less extreme, but related, example is the opposing party who you do not trust to provide complete or accurate information. I mentioned last week that one of the reasons mediation was less expensive is because there is not the typical process of disclosure and discovery used in litigation. However, that process is very valuable for a client who may have been kept in the dark as to the extent of their spouse’s assets and debts. While mediators do “require” that the parties disclose this information, it’s not typical for them to investigate whether or not each person is fully complying with that requirement. In this scenario, you would want an attorney – and possibly experts – involved to issue discovery requests, subpoena information if needed, and examine the information received to see if it leads to even more relevant information. After that process is complete, mediation could once again be considered.

Finally, if you have been the victim of domestic violence such that you do not feel safe engaging in mediation with the other party, be sure to mention that fact to your Judge, mediator, and/or attorney. This is not just a physical safety concern, as many victims have been so intimidated by their partners over a length of time that they find themselves unable to stand up for their rights on their own. If you have an attorney, there are types of mediation you can engage in where you would be physically separated from your spouse, and your attorney would take on the role of looking out for your best interests. Do not hesitate to make your attorney aware if this is the situation you find yourself in.

If you would like to speak with one of our experienced Attorneys to explore the possibility of mediation and whether it would work for you, please call OWENS & PERKINS at 480.994.8824 to schedule your 30-minute free consultation.