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  • Mediation

    Reading info/threads about mediation and get puzzled as to why opinions on mediation are so drastically different?

    For instance:

    Originally posted by Janus View Post
    ...family law is not a playground. If you make an offer to settle, then it is a real offer to settle. If you want to play around, do that in mediation where your word counts for nothing and you can negotiate without consequence.
    and this:

    Originally posted by sucessfuljourney View Post
    ...
    Originally posted by sucessfuljourney View Post
    Mediation (with a BSW MSW social worker) got us into really good talking terms and getting along that I am almost confident marriage counselling could have saved the marriage.

    If I could go back and try harder to save the marriage, I would have. Though I am sure I tried my very best at that time given the circumstances. ....
    Is it "yes" or is it "no"?
    Last edited by Mother; 10-17-2019, 02:21 PM.

  • #2
    The value (or lack thereof) of mediation isn't a "yes" or "no" question. In some cases it's great. In others, terrible.

    People who approach negotiation in good faith but need help talking can find mediation very useful. In contrast, for those who want to pull out every stop to get what they want, and refuse to consider matters from the other side... mediation can be a tool of manipulation and a giant waste of money/time for the other side.

    Related, while this forum can be useful for people to share their own experiences, we must be cautious before we assume our personal experiences can be easily transferred to others. Professionals see thousands and thousands of cases...most people on this forum see only their own. Reading case law is useful, but only gives you the last chapter of the book. As such, people will say things like "X is great" or "terrible" while failing to appreciate nuance.

    Comment


    • #3
      Which means mediation is useless if a party is saying ahead of time "oh well, I know it won't work but since you insist, then ok, I'll go to look better and to show I tried" ?

      Comment


      • #4
        It’s certainly not an encouraging comment.

        Comment


        • #5
          I went with what my lawyer told me. He said he never gives blanket recommendations of mediation or arbitration. It's case specific. When he first told me this- I thought "sure sure, you just don't want to tell me who the mediator is so you get more $$$ out of me"...but that was dumb. And totally untrue. He wanted to get to know my ex and me. He told me that formal mediation wouldn't work for us- because my ex was mad at me and unreasonable. And I was making decisions from a place of guilt. That's my story.

          I do tend to give the advice on here that if the other party is unreasonable. Then just move the file to trial. But Kinso is right- it's my bias coming through.

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          • #6
            Unless both parties are reasonable and want to reach a solution, mediation won’t work. Almost all agreements say mediate first but not all parties can do it. If you think the ex won’t mediate then don’t waste the money.

            My husband’s judge said it best—both parties have to be willing to mediate but if one party keeps bringing up the past and not moving forward, mediation won’t work.

            Comment


            • #7
              Originally posted by rockscan View Post
              Unless both parties are reasonable and want to reach a solution, mediation won’t work.
              Worked wonders for me.


              Originally posted by rockscan View Post
              Almost all agreements say mediate first but not all parties can do it. If you think the ex won’t mediate then don’t waste the money.
              If your agreement says to mediate first, and you don't do it. You will be seen as a high conflict fighter. Court is absolute last resource. Always try mediation first.

              Originally posted by rockscan View Post
              My husband’s judge said it best—both parties have to be willing to mediate but if one party keeps bringing up the past and not moving forward, mediation won’t work.
              Worked wonders for me.

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              • #8
                Worked wonders for me.
                As I said above, we must be cautious before we assume our personal experiences can be easily transferred to others.

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                • #9
                  Originally posted by Kinso View Post
                  As I said above, we must be cautious before we assume our personal experiences can be easily transferred to others.


                  This ^^ Thank you

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                  • #10
                    I burned $10,000 in mediation that failed. Asshole lawyer on other side had no intentions of mediating but wanted to rack up some more billable hours. He didn't negotiate in good faith so time and money was burned. Unfortunately you have no idea of knowing if it will work or not until after you have spent the money. Of course lawyers will make the argument that trial is very expensive so just try mediation. This is what you get with a broken system.

                    Comment


                    • #11
                      Originally posted by Kinso View Post
                      As I said above, we must be cautious before we assume our personal experiences can be easily transferred to others.
                      That was exactly my point. Just because a judge told rockscan mediation would fail under those circumstances , it doesn't mean it would. In fact, mutual agreement is the ultimate solution in the majority of the cases. A very low percentage of family law matters actually end up making it to trial. And to that point, good judges actually encourage settlement and amicable out of court ways to settle matters - that's why you see all those small conference rooms alongside the hallways of courts.

                      The judge residing our matter told us the court was a very bad place to be and fully encouraged us to do mediation. Matter of fact, judges often have training and education in mediation as well, and they do, and have many times in our case successfully what the judge called "mediated" consent orders between us. The courts call it "Settlement conference". Settlement conferences are also private and confidential and nothing stated at a settlement conference can be repeated in trial.

                      Any lawyer or judge that discourages mediation, truthfully just gets offended and doesn't want to be out of a job and is failing the best interests of children. Mediation is a big thing and way of future and even mandatory now in some states. Parents who come to an agreement between themselves are more likely to follow through with their agreement than if it were to be ordered/forced upon them by a judge.

                      It can also boil down to who is doing the mediation. In our case, mediation would have failed flat on its face if our mediator was one of those anti-dad anti-shared-parenting "professionals". It's very important to find a GOOD mediator with a high success rate.

                      Why go to the trouble of all paper work, court, retainer, and stuff when you can schedule 5-6 back to back sessions in a matter of 1 month and maybe half with a mediator, pay a fraction of the price, engage in person amicable discussions with your ex to reach something between yourselves, than to go to court for years, spend thousands of dollars, write affidavits and crap, all to have a stranger decide and maybe even ruin your life ?

                      Always, always, always try mediation first. You just won't know until you try it. It's like food, you won't know what it taste like until you try it. Rockscan may think the food tastes bad based on what she has heard from her guardian angel, but she herself has never tried it .

                      Comment


                      • #12
                        I knew mediation wouldn’t work but agreed to it in order to get to arbitration as the judge had been refusing to put us on the trial list so I thought this would be faster. Boy was I wrong! Ex agreed to med/arb then refused to sign the agreement for another 8 months. Then hired a lawyer who stalled for another 6 months. I finally got fed up and forced mediation with the help of the mediator who was also getting fed up with the delays. Mediation happened and ex and his lawyer arrived totally, I mean totally unprepared! Didn’t have any mediation brief, no documents whatsoever with them. I forged ahead anyway because I wanted mediation over and done with so we could go to arbitration.
                        Now they want another mediation session because they are furious I forced mediation through and they know he is going to be slaughtered in arbitration. I said no way. Looks like we will have arbitration in the new year.

                        I wish I would have followed my own instincts instead of my lawyers advice. Because while he was stalling he was also committing fraud with the assistance of his family. Putting marital assets and millions of dollars in family member’s names, transferring the title of real estate holdings out of his name and into family members names. So now we have to go to real court anyway to have these family members made parties to our litigation so that I can go after their assets ( which are hidden marital assets). Apparently an arbitrator can not make these orders, only a real judge can. Had I known this beforehand I NEVER would have agreed to med/arb!

                        Comment


                        • #13
                          Originally posted by Stillbreathing View Post
                          I knew mediation wouldn’t work but agreed to it in order to get to arbitration as the judge had been refusing to put us on the trial list so I thought this would be faster. Boy was I wrong! Ex agreed to med/arb then refused to sign the agreement for another 8 months. Then hired a lawyer who stalled for another 6 months. I finally got fed up and forced mediation with the help of the mediator who was also getting fed up with the delays. Mediation happened and ex and his lawyer arrived totally, I mean totally unprepared! Didn’t have any mediation brief, no documents whatsoever with them. I forged ahead anyway because I wanted mediation over and done with so we could go to arbitration.
                          Now they want another mediation session because they are furious I forced mediation through and they know he is going to be slaughtered in arbitration. I said no way. Looks like we will have arbitration in the new year.

                          I wish I would have followed my own instincts instead of my lawyers advice. Because while he was stalling he was also committing fraud with the assistance of his family. Putting marital assets and millions of dollars in family member’s names, transferring the title of real estate holdings out of his name and into family members names. So now we have to go to real court anyway to have these family members made parties to our litigation so that I can go after their assets ( which are hidden marital assets). Apparently an arbitrator can not make these orders, only a real judge can. Had I known this beforehand I NEVER would have agreed to med/arb!

                          Meidation and Arbitiration are completely different. You should also not be going into mediation "just to" get it "done and over with" to move forward with arbitiration.

                          Also, why were lawyers and "documents" present in mediation? Ex and I just attended with some clothes. on.

                          A judge refusing to put you on the trial list is a good sign that you should reach an agreement with your ex.

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                          • #14
                            You are supposed to prepare a mediation brief which you give to both the mediator(ours is an experienced family lawyer as well as mediator/arbitrator) and the opposing party a few days prior to mediation. The mediator asked for this and set deadlines for when they were due! This is so that both parties and the mediator have an idea of the other party’s position and have a starting point from which to begin mediation.

                            By my ex not preparing a mediation brief the whole process became prejudiced against me as he had my brief with my position and I had no idea what his position was. The mediator did rule later in a motion that my ex had acted deliberately and in bad faith for this as well as stalling and putting all of his assets in other family members names.

                            The reason the judge wouldn’t put us on the trial list is because of my ex’s lawyer’s stall and delay tactics. When my lawyer estimated trial would last 4-5 days and we would call 4 witnesses, his lawyer said they needed 26 or more days for trial and had 17 witnesses to call.

                            They already stalled mediation for a year and a half when it’s supposed to take place within a month or two of signing the agreement. We had a date scheduled which they asked to adjourn to gather more financial evidence ( this was granted). However three months later they hadn’t even started gathering this extra information so I called bullshit and the mediator agreed with me. I asked for another date to be set and it was. They tried to wiggle out of that one too right up until the day before but it didn’t work. The mediator would have none of it.

                            I showed up at mediation well prepared and ready to mediate my ex did not. He has been acting in bad faith throughout our litigation which finally, the mediator saw through and attributed to him in full capacity and not his brain injury!

                            I knew from the get go that mediation would be a waste of time because I knew I would come to the table willing and ready to mediate and my ex would not. I was proved correct. He is panicking now that we are headed to arbitration and he is no longer able to stall his way out of it. We filed a motion after the mediation and I won plus I won costs.

                            Going into my eighth years of litigation with no issues at all settled. I have sent multiple offers including severable offers to settle. All have been ignored. We are finally headed towards a forced resolution but only because I’m pushing. Eight years of litigation is enough already. If it were up to my ex he would never settle but instead keep dragging things on forever.
                            Last edited by Stillbreathing; 10-18-2019, 08:47 AM.

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                            • #15
                              Mediation

                              My comment about the judge was to point out that even though your agreement says mediation, if it won’t work a judge will not necessarily get angry. They can see the conduct of the parties in the materials and responses to items.

                              For instance, you have a recipient asking for disclosure repeatedly and the payor refuses. The recipient goes right to filing a motion instead of mediation. A judge won’t get upset that mediation didn’t happen as they can see that one party is being unreasonable and an order is required.

                              My husband’s ex tried to paint him as unreasonable for not attending mediation. The judge pointed out the flaw in her argument.

                              Comment

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