Mediation Re-visted

It has been a while since I have blogged about mediation and thought with the Holiday season fast approaching a mediation blog would be in order. First I think it's important to clarify that law offices are covered by the canon of ethics and must adhere to these canons during all steps of the mediation process. In my office in order to have a mediation consultation BOTH parties must be present. I never want even an appearance of impropriety where one party says that I gave out advice to one party over the other. If in fact someone comes in for a regular divorce consultation and chooses later to come back as a mediation client, I will advise the spouse that a separate consultation had taken place and ask if they are still comfortable proceeding with the mediation consult. Also neither I nor any members of my staff will ever discuss any matters pending in my office(or even potentially pending) with a non party. This is a stead fast rule which is based in the canons of the legal ethics which I mentioned earlier.

That being said, let us examine why mediation is not a more popular forum for divorcing couples. First the parties must both want a divorce. In most cases, one party is resistant while the other party is ready to dissolve the marriage. When one party is not willing to move toward the dissolution mediation will not work. The other reason mediation is not as popular as it should be is that both parties must be willing to compromise. Many times couples will seek independent advice and not want to bend after being told what a court of competent jurisdiction will most likely rule. Of course the big part of this equation comes down to the question of money. How much are parties willing to pay to reach a divorce agreement and do they want to litigate for years or come off their positions and decide their own fates, as opposed to have a completely uninterested party decide for them while paying thousands and thousands of dollars.

Mediation is really the most humane and civil way for a couple to end their marriage. Combined with counselling it is the most cost effective way to dissolve the marital relationship. Unfortunately, it still remains unpopular in our jurisdiction. Perhaps for much the same reason that we still of one of a handful of jurisdictions left that does not have no fault divorce. Once society embraces the concept of divorce not as a failure but instead as a way for parties to move on with their lives, perhaps mediation will become the "divorce route" of choice.