Interviewer: In your cases have you ever run across where one party is not interested in that; mediation is just not something that they want to do, and it’s just used to prolong the divorce process? How often would you say that happens?
In a Small Percentage of Cases, One Party will refuse to Enter into Mediation with the Other Party
Gary: I would say in about 10% of the cases, there’s maybe a party that doesn’t really want to mediate. Typically, in those circumstances, they will actually file a motion with the court after the court appoints the mediator whether it was precipitated by one party, filing a motion, or whether it’s just a court’s practice to do so.
The other party may come forward and say, “Look, we don’t want to go to mediation, because we don’t want to be put in a position to have to negotiate with these people. This is an all or nothing kind of case.”
This happened to me recently in a case. The other side just thought they had a procedural ground to dismiss the whole case against us. They thought the jurisdiction wasn’t proper in the place we were. They wanted to go to a different state and have the litigation there.
If the Appropriate Motions Are Filed and Are Legally Appropriate, the Mediation Can Be Terminated
Of course, they would be willing to mediate in that other state probably, but they didn’t want to do it here in front of the Texas courts. They filed a motion, and the judge basically granted the motion, and they said, “Look, you have to go to some other state and do this.”
In those circumstances, if you have a good reason for it and you don’t want your clients incurring the expenses of doing a mediation that’s ultimately not going to resolve anything because you’re saying the court that you’re mediating in doesn’t even have jurisdiction, then the mediation can be stopped.
Refusing to Participate in Mediation without Good Cause Will Affect the Outcome of a Case
If a party doesn’t have a good reason, if a party is just going to the mediation, they sit there and they won’t agree to anything, then that’s not mediating in good faith. There can be things that the mediator can do to correct that. Typically, it’s not good for that party, because if the mediator writes a report to the judge and basically says the other party wasn’t mediating in good faith, that’s going to have an effect on the outcome of the case in many instances.
Now, I would say this, even parties that don’t think they want to mediate and I’ve gone to mediation with clients that don’t want to mediate. They’re kicking and screaming going in there, because they don’t think it’s going to help, and they’ve heard negative comments, such as mediation is like a $400 turkey sandwich or something like that. We serve you lunch, so you’re paying $400 bucks for lunch.
Why Mediation Works? Many Couples Who Were Initially Opposed to Mediation Have Reached Fair Settlements through Mediation
The reality of it is it’s not like that. I would say in most of those cases, good mediators are able to bring the parties together. They can break down that barrier. They can get the person and isolate them with their attorney and really get to, “Why don’t you really want to settle this case?”
Sometimes hearing it from somebody other than your lawyer, other than the person that you’re paying to basically help you can be beneficial. You always want to be candid and honest with your client, but you can’t be so candid and honest that the client fires you.
So, you have to talk to your client in a way that a mediator doesn’t have to talk to your client. The mediator’s not hired by your client. They don’t care if your client’s feelings are hurt. They’re going to lay it out for you in a way they may never have heard it. A lot of people need it told to them that way.
Interviewer: I can see where you’re coming from, an attorney you’re paying them, you expect, “Oh, they just want to make sure they’re getting my money,” whereas a mediator is more like, “No, I don’t even care about your money.”
