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Should We Also Talk About When Mediation Fails?

by Justin Kelsey
June 2016 Justin Kelsey

This post is a follow up to last week's post about the Observer Effect in Family Law, and the ongoing conversation on the MBA's My Bar Access forum about the recent decision in the Ventrice case. A few attorneys in that discussion have expressed an opinion that is clearly held by many others:

"...what I see is a lot of failed mediation."

Unfortunately, this fact may be true for many, because litigators don't see the successful cases from mediators, they only see the cases that failed. This creates a skewed view of mediation. But it's also problematic if you extrapolate any one failure to all mediation. If the parties failed to reach an agreement in mediation does that mean mediation doesn't work, or that mediation didn't work for that couple?  If a party changes lawyers do, we call that a failure of the whole court system?

There are bad and good lawyers, and there are bad and good mediators, and there are bad and good clients! We have to be careful not to treat them all the same. That's why I believe informed client choice is so important. Ultimately the client will always know their individual situation better than we will.

So how do we find the right balance for informed client choice between mediation, litigation, collaborative law and other hybrid processes (such as conciliation)?

The first step is to make sure that while the importance of litigation as an option for those that need protection is not diminished, it is not touted as a one-size fits all solution for anyone ready to divorce.  We must make sure that reservations about mediation are not the only thing clients in conflict hear about mediation.  We want you to hear about the successes too!

Court access should not be restricted, and there are serious reasons to be concerned about anything called mandatory mediation.  But the value of voluntary mediation should not be lost in that statement.  Mediation can be a valuable resource to many before going to court, and a powerful tool even once the court process has begun.  While our office offers multiple dispute resolution options, including litigation, I personally prefer mediation.  I have litigated, I have participated in Collaborative Law, I have represented clients in mediation, and I have mediated.  While each process has its advantages and disadvantages, my anecdotal experience has been that the clients I have who participate in mediation or the collaborative process are happier with their results and return to court less often.  While I recognize that my experience is not universal, I think it's an important counter-point to the litigator's experience of "failed mediations."

In rightfully cautioning about being too enthusiastic about any one process option, Steven Ballard termed the phrase "enthusiastic mediation evangelist" which I gladly accept.  Just as I am asking attorneys who don't mediate to self-reflect on their "Observer Effect", I will self-reflect about whether I am too enthusiastic about mediation, and how that affects my potential clients.  I wouldn't want one of my clients to lose the protection they may need from court by not having enough information, but I equally fear that potentially peaceful divorces are being guided into a conflict-ridden process due to lack of information.

The take-away point should be the same for everyone.  Many misunderstand what mediation is and mislabel dispute resolution processes.  I urge litigators to educate themselves about mediation, because if you only tell clients about the disadvantages then you are not providing balance either.

The question I get most from other lawyers about my mediation practice has nothing to do with the merits of mediation, which as Steven points out I'm enthusiastically willing to espouse.  The question I get most is how do you make enough money doing it.  That is a really disappointing question because it means that many lawyers don't give mediation a chance because litigation may be a more lucrative business model.  Should that drive the client choice?  How do you think clients feel about that sentiment?  (Hint: watch the trailer for Divorce Corp.)

Regardless of the fact that I think mediation and other dispute resolution processes are a viable business model, I think they are better for clients in most cases and that should be the first priority.  Look for my future posts on resources available to make mediation a better business model.  Until then, I will try to bring balance and clear choices to potential clients, but to other lawyers I'm happy to be the "enthusiastic mediation evangelist." And I can't help quoting John Lennon again, because:  "All we are saying is give peace a chance."

Biography


Justin Kelsey is an MCFM Certified Mediator, a designation reserved for members of the Massachusetts Council on Family Mediation with significant mediation experience, advanced training, and education. In addition to offering mediation and collaborative law services, we continue to represent clients both in litigation in court and in all of the various types of out-of-court dispute resolution. We think of ourselves as a family that helps other families resolve conflict.
 


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