Don’t Get Tricked into A False Mediation

Mediation is always best… or is it? Many lawyers will propose mediation automatically as the default starting point in a family law dispute. While mediation is often the best place to start, sometimes starting with mediation can lead to wasted time and resources.

Mediation works great if there is a desire to settle on both sides. However, sometimes one spouse may have no intention of negotiating in good faith as there may be other reasons for them to continue fighting. I have seen this in the context of custody disputes when one party believes that maintaining the present parenting arrangement is to their benefit and they are hoping to establish a status quo. They may believe that dragging out the mediation process for a few months may solidify a parenting regime in their favour as some judges can be reluctant to disrupt a parenting schedule that has been in place for an extended period.

Also, mediation costs may eat into a person’s litigation budget. The party with more money available to them may realize this and drag out mediation just to eat up the other party’s funds, making it more difficult for them to go to court. I have had a client retain me after spending one year in mediation, burning through all money available for legal work, and we had to bring a costly application for the sale of a property and an interim distribution of marital assets.

Mediation will also usually not be appropriate when an urgent matter needs to be resolved. If someone is emptying the family bank accounts and sending money to Panama, you probably don’t want to wait to settle in mediation. The same situation arises when a child has been abducted and you need to act quickly to have them returned.

Sometimes, one party mediates with no intention of settling simply to maintain a relationship with the other party. In these cases, an individual may never want the conflict to end as that will end the relationship so they refuse to settle in order to keep the connection. I have seen this occur in mediation when an offer gives someone everything they have asked for yet they would still not settle the dispute, creating new issues to resolve that had never been raised before. This issue can arise when dealing with a party who has a mental health issue like a personality disorder.

Furthermore, there is sometimes such a power imbalance between the spouses that mediation would simply be inappropriate. Abusive relationships can spill over into the mediation process and revictimize a spouse. People who have experienced traumatic abuse may experience PTSD if forced to confront their abuser in mediation. Even if mediation occurs in separate rooms, the process of engaging with an abusive partner can be too much for some.

Therefore, while mediation works for many family law and divorce cases, it should not be entered into blindly. Sometimes it makes more sense to go to court early in the process to avoid wasting time and money.

If you are considering mediating your divorce file the family lawyers at Crossroads Law are available to attend mediation or act as mediator. Please contact us for more information.

By Marcus Sixta, Accredited Family Law Mediator