Five Myths of Mediation

Mediation has been a wonderful development in judicial administration, resulting in the settling of cases that would otherwise have cost the parties countless dollars and emotional distress; however, it is not a magical elixir automatically resulting in happy parties to litigation. One reason people have gone away from mediation as unhappy campers has been a false concept of what mediation is about and what one must do to prepare for it. The following are common "myths" that people have had concerning the process. A realistic view of the process is necessary to avoid bad results.

Myth #1 - Everything we say here is confidential so you can be perfectly frank.

While it is true that most communications in mediation (other than those relating to criminal acts) are inadmissible in evidence, it does not follow that you can be perfectly frank without fear of hurting your case. Saying the wrong thing can hurt your case in many ways:

While a statement is not admissible in Court, there is nothing to prevent the opposing attorney from asking your client a question regarding the statement, either at the trial or at deposition. For example, if you admit to a secret bank account, the other side then can inquire as to that specific account, or even subpoena the bank records directly.

You might expose your vulnerability. If for example, you say you are fearful of going to Court, the other side might be encouraged to press their case rather than settle.

If you tell the other side what you really think of them, you might create such anger on their part that settlement becomes impossible.

You could disclose your trial strategy or indicate that a witness they fear is no real threat.

Myth #2 - Since no one can force you to reach an agreement, you don't have to worry about preparation.

Wrong!!! Even where parties enter the process intent on not giving one inch, the process is such that a skilled mediator can exert tremendous pressure to settle. Many people enter the conference thinking that it is a waste of time and they leave with a settled case. As with everything else, the person who is in greater command of the facts will have the advantage.

This is not to say that your preparation should be the same as if you are going to trial because that is neither practical nor necessary; but, it should be clear that you fully understand the case and will be able to handle any contingencies that arise. You should prepare for the mediation in the same manner as you would prepare for serious negotiations, for that is what you are doing.

Myth #3 - In order to settle the case in mediation, everyone has to be fair and nice to each other.

This is a wonderful philosophy and it is the way it ought to be. It is a worthy goal and should be pursued and, in fact, is usually the most likely path to settlement. But, the fact that the other side is a nasty person doesn't mean the case won't settle. People settle cases in mediation as a result of all the psychological and circumstantial reasons they settle it in any context: a feeling their needs are being met and they are treated fairly, yes, but also, fear, greed, embarrassment, wimpishness, and other less than lofty motivations. Whether nastiness comes from our side or their side, we must recognize that these matters sometimes contribute to settlements.

Myth #4 - Since settlement requires agreement of the parties, you must convince the other side, not the mediator.

It is true that the mediator does not decide the case and it is the other side that must be persuaded to accept your proposal. However, the mediator, particularly a strong and reasoned personality, can be an awesome force, not only upon the lawyers, but upon the clients as well. There are many instances where parties posture fiercely but as soon as the mediator suggests that a particular viewpoint is fair or realistic, the momentum can immediately shift from confrontation to conciliation, and then to settlement.

Also, the mediator frequently is the one doing your direct negotiation for you either in the presence of everyone or as part of "shuttle negotiation". You may end up negotiating directly with the mediator rather than the other side so, while you may want to avoid a direct argumentative plea to the mediator, you need to be aware that the mediator's opinion indeed counts for much.

Myth #5 - A bad settlement is better than a good victory.

This is another statement popularized by those folks who believe that everyone should love each other and that the future formers who leave the marriage loving each other is better than once side gaining a "victory" over the other. Well, there is a lot of merit in that philosophy and approach, but unless one recognizes the reality that this is not the goal of one or both parties, you might as well teach pigs to fly because reaching settlement will be that difficult. Emotional reconciliation is indeed a worthy goal but don't assume it is the other parties' goal.

The best way to understand the dynamics of divorcing couples is to follow the news reports in the media as to other conflicts and imagine the parties going through a divorce. Imagine, for example, an announcement prior to the World Series to the effect that the teams have settled their controversy and have agreed that one team beat the other team four games to two but the losing side's pitcher threw a no-hitter and everyone is happy with the result. We would be astounded because we know that the teams would rather play the game rather than "settle". Divorcing parties sometimes have this same desire.