Wednesday, January 26, 2022

What to Do If Your Mediation Goes into a Tailspin


Street Scene, Paris

   It goes without saying that I am a true believer about mediation – otherwise I wouldn’t be doing this work.  Instead I’d be on an island in the sun...Okay but back to conflict resolution reality….

I know that mediation isn’t always easy on people, and still, I believe that considering possible outcomes, financial expenditure, and emotional health, mediation offers much better options than litigation. I could probably talk to you all day long about why I believe in mediation, but I also understand that sometimes mediations do fall apart. 

I have a few thoughts about how to try to keep a mediation from tanking and ending up in a nasty, expensive, court fight.

  • ·        Plan ahead – agree that if a stalemate arises, you and your ex will engage in a set plan (*see below); sort of a conflict resolution inside of conflict resolution;
  • ·        Your plan could include any or all of the following (or anything else that seems reasonable to the two of you) – a cooling off period, e.g., 2 to 8 weeks without trying to work on it, an actual resting period; commit to a discussion w/your mediator to get to the bottom of the reason(s) to quit mediation; active listening and agreement to participate in good faith to try to resolve the conflict within the conflict;
  • ·        If you are already working w/counsel, see if the attorneys can get past the stalemate, in discussion without the spouses, in which the attorneys confer and then communicate with their clients;
  • ·        If working with counsel, perhaps change attorneys or agree to proceed in mediation without attorneys;
  • ·        Consider changing mediators;
  • ·        Before ending mediation and heading to trial, consider if there are some issues that can be mediated (e.g., custody schedule, or spousal or child support, or allocation of assets, or how to divide the book collection, etc.), resolve these by agreement and if the remaining issues absolutely can’t be addressed in mediation, go to court on those issues.

There are some situations, of course, when mediation may not offer a viable remedy. For example, if your ex is stalling and has zero intention of participating in good faith, if there is a time-sensitive issue (e.g., impending re-marriage, death, financial consequence, etc.), or in situations of dangerous domestic violence.  If you’re engaged in mediation and you or your ex want to throw in the towel and head to court, I hope that my suggestions might be helpful to try to save you from a knockdown dragged out court fight.

If you want to talk it over, you can contact me anytime: or 510.210.3796. Hang in there and remember that even miserable times don’t last forever…. 

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