Misconceptions About Mediating Conflict


Misconceptions About Mediating Conflict

COVID-19 has wreaked havoc with the judicial dockets and schedules and the entire court system.  Mediation has proven to be an especially valuable method of conflict resolution during these trying times.  Pandemic restrictions have led to an increase in the number of mediations in Florida and it is expected that online mediations will likely continue long after the pandemic restrictions have been lifted.

Even the most challenging matters and those with parties with strong personalities can be resolved in mediation. It is crucial to seek accurate information about how the mediation process works.  There are many different mediation misconceptions that are simply not true.  Without a full disclosure of information, mediation can fail or result in a one-sided resolution.  While mediation continues to fulfill its promise of being the “wave of the future,” there are still a number of misplaced concerns that cause the process to be underutilized.

  1. Myth: Mediation Does not Work for High Conflict Cases. 

Reality:  Mediation is Appropriate for High Conflict Cases.

Probably the most common misconception about divorce mediation it that couples think it is only suitable for couples that get along. Their perception is that since they are not getting along very well with their spouse, they can’t sit down together and discuss anything let alone issues regarding their money and children. In fact, mediation is very well suited to helping parties who are in high conflict to work through their differences and come to a reasonable solution.

While it may be true that the two people are too emotional to sit down together alone, in mediation they work with their mediator, a trained professional and neutral third party, who has the experience and training to help them focus on the issues at hand and to work together to resolve them. The mediator has many tools available to assist when emotions run high, such as caucusing by meeting with the parties in separate rooms or using an online platform until emotions have a chance to settle down. The mediator is skilled at helping the people to focus on the issues at hand and the future rather than the things that happened in the past that brought them to divorce in the first place.

The goal is to help the parties develop better communication around the emotional roadblocks that they are facing. In the end, by going through the mediation process together and reaching reasonable solutions to the issues facing them, parties that mediate learn new ways of working together as they go forward into their new future. This is a huge benefit, especially when children and co-parenting are involved.

  1. Myth: Mediation Is Cheap. 

Reality:  Mediation is More Cost-Effective than Ongoing Litigation.

Since mediation is a discussion between the parties, it can be much quicker than the formal trial process. Thus, it may also cost less than going to court – in both dollars and stress. Mediation is more cost-effective than ongoing litigation. Typically, the mediation process takes between two and ten hours, depending on the issues and the personalities involved.  Many divorces are mediated in a single session and sometimes the process is spread out over time.

Cost is frequently one of the most pressing concerns for individuals who are in the midst of pursuing a divorce. In many cases, the perceived cost can prevent some couples from ending an unhappy marriage. The specific method that you use to pursue the finalization of the end of your marriage can drastically affect the overall cost. In particular, mediation can significantly lower the cost, compared to other methods — including litigation.

Spouses who are willing to participate in mediation will typically find a lower overall cost for several reasons. First and foremost, mediation is frequently less time-consuming and costs less than the attorney’s fees. Especially compared to litigation, the professional costs of hiring a legal advisor to assist you with mediation are substantially lower.

In some situations, there is even the possibility of working through mediation without an attorney. Tricky situations and legal scenarios may require the assistance of an attorney, and you may still want to consider enlisting one to help you get all that you are entitled to.

However, some couples find that they are able to undergo mediation, and it solves any potential marital disputes about assets and finances without legal representation.

What many couples really want to know is how much mediation will actually cost them. Unfortunately, there are several aspects that need to be addressed to determine the real cost of mediation. Finances certainly have to be considered, but your relationship and emotional tolerance also need to be addressed.

Mediators will typically charge an hourly fee in the same way that attorneys do. In a similar fashion, that fee will vary from individual to individual, and differences in education, experience, and skill level play into the cost.

However, opting for the cheapest available professional may not put you in the best position for a secure financial future. You should seriously consider the qualifications of the expert that you and your spouse choose, as this person will come up with your proposed settlement.  Overall, the cost of hiring a mediator could be just a few thousand dollars, in comparison to the tens of thousands that are often associated with litigation.

While many couples are eager to consider the financial implications of mediation, they tend to ignore the emotional and relational benefits of this method. Because mediation between cooperating spouses can be resolved in a timelier manner, it takes less of an emotional toll on the two of you. Certainly, it is less emotionally stressful than litigation, which requires you to wait for a judge to determine the final outcome.

Mediation can be completed so quickly that some couples are able to do it in just a single day or session. Others may require multiple sessions over the course of several weeks or months. During this time (however long it may be), both spouses are given the ability to hear the other’s point of view about the critical items in the settlement. When the lines of communication are open, it is significantly easier to come up with a solution that is beneficial to both spouses, as well as any children involved in the dispute.

Particularly when children are involved, mediation takes less of a toll on the relationships among family members. Mediation sets the stage for teaching both spouses to begin working on their communication skills in their new post-divorce relationship; that is a critical skill when there are children involved. Therefore, an ongoing relationship will be necessary. Aside from keeping these lines of communication open, mediation allows you to work through difficult issues regarding custody, visitation, and providing a safe space for the children.

No matter what the reason, the breakdown of marriage always has a hidden cost that can surpass the financial obligations. Though both aspects need to be considered, mediation has the potential to be a more cost-effective solution for many couples.

Perhaps the cost of divorce is keeping an unhappy couple in an unhappy union. If so, they may consider the lowered fee associated with mediation, but only pursue it if it is possible to speak openly and discuss potential issues.

  1. Myth: A Judge will Hear the Truth and Justice will Prevail. 

Reality: There is No Guarantee the Truth Will Lead to Justice. The Realities and Complexities of the court can cloud reality and foster unrealistic expectations.

In the legal arena, the truth does not exist in and of itself. It must be proven.  The truth is whatever the judge or jury says it is—not what one person knows it to be.  For clients, that can be a hard reality to grasp. If there is no incontrovertible proof, such as a memo or a video, the situation can become a “he said/she said,” situation, which means it’s anyone’s guess as to how the “truth” will be determined by a judge or jury.

It is important to educate people about the fact that there is a dispute—that they have different recollections—and ultimately, a judge or jury will decide which version they believe.  Understanding that the truth is what someone else concludes it often helps refocus the analysis from a more objective point of view.

The belief that justice will certainly prevail in court is a myth.  Not only must a person convince the trier of fact that her version of the facts is true, but she also must be sure that the judge or jury will apply the law to the facts correctly.  Judges are human, and they can make mistakes. That is the reason for the Courts of Appeal.  Attorneys file motions that keep key evidence out.  Witnesses move away or forget important facts.   All this means there are no guarantees that justice will prevail.

The courts only usher parties through the legal aspect of your divorce. When the other issues of life remain unaddressed during divorce they can cloud reality and foster unrealistic expectations about what the courts can do. To better understand what can and cannot happen in court remember that Court TV shows are for entertainment and do not portray the realities and complexities of the system, especially the complicated rules of evidence.

The family court system should not be used as a tool for revenge or punishment and this tactic can easily backfire.  Often those who want to provide you with support and protection become emotionally charged themselves and their misguided efforts serve to fuel the fire instead of helping you move on with dignity and grace.  Sometimes in a divorce case, even if you win in the courtroom, you lose in the court of life. The drain and anger of a high conflict divorce can be emotionally and financially devastating and make you unattractive to a healthier potential mate.  Every case is different. Even cases that seem similar will play out differently. So do not depend on legal advice from your friends and relatives.

If parties resolve the dispute in mediation, they are not gambling on what the judge or jury might decide. In a trial, the final decision will be made by the judge or the jury (if there is a jury). It is uncertain what decision will be made at trial, but you will be bound by that decision whether you agree with or like the outcome of the trial. At mediation, the parties make the decisions.

  1. Myth: I hired an Attorney to Litigate, not Mediate. 

Reality:  Most litigated cases in Florida will settle in mediation.

If an attorney is used to adversarial (contested) divorce proceedings, it’s unlikely that this particular attorney will automatically consider mediation as an option for your divorce.

Some attorneys disapprove of alternative dispute resolution altogether, arguing that divorcing spouses shouldn’t negotiate the terms of their own divorce without legal training. Attitudes are slowly shifting, but if you’d like an attorney who is well-versed in mediation and other non-adversarial tactics, it’s important to raise questions about mediation during your initial consultation.

Contrary to popular belief, attorneys generally support alternative dispute resolution, like mediation. Attorneys understand that most couples don’t have the money to cover the costs of a trial and a continued contested divorce and encourage clients to attend mediation with an open mind and in good faith.

A lawyer’s primary function is to inform clients of their rights and responsibilities during the divorce process, to coach them through the negotiation process, assist them with creating a settlement agreement that meets their needs, and prepare the necessary paperwork to obtain court approval of the final agreement. While most states prohibit attorneys from charging a flat-fee for divorce, many will charge a reasonable hourly rate for services, and if the attorney requires a retainer up-front (advanced payment), the client will receive a refund of any money unused at the end of the case. An attorney can act as a consulting attorney through mediation, informing you of your rights, helping their client prepare to negotiate, and reviewing any proposed agreement before is signed.

  1. Myth: Mediation is a Waste of Time. 

Reality:  Even if no agreement cases is reached in mediation, it is rarely a waste of time. 

In my opinion, mediation is rarely a waste of time.  Mediation brings parties to the agreement on many issues which the parties (or their attorneys) never thought possible.   The key to mediation is to understand the process, be prepared, and be flexible.  There is often an answer to the issues that can satisfy both parties leaving the decisions of the divorce to them and not to the Court.  Even if there is not a complete agreement, perhaps mediation is a way to resolve some of the issues in order for the parties to focus the litigation on the issues that cannot be solved.  At a minimum, the mediation permits conversation about the issues and an understanding of the other party’s point of view.  Even if the parties do not agree, it could prompt thought about how to resolve the issues or about what resolutions to rule out entirely.

Whether you waste time engaging in any experience is a matter of attitude. If Thomas Edison believed that all of his experimental failures were a waste of time, the world would have had to wait much longer for the electric light bulb to be invented. Just because something doesn’t work out the way you expected, doesn’t mean it was useless. If your attitude or belief is that the only purpose for mediation is to reach a settlement based on your terms, then you may need an attitude adjustment. You may lose many opportunities to settle cases that should have been settled.

Attorneys think that the mediator will act as a judge to pressure the other side to see their point of view. They want the mediator to be an advocate for their side and to tell them what horrible consequences will befall their opponent. These attorneys are so sure of their position that they do not hear anything the mediator has to say about the merits of the other side and they fail to evaluate the potential risk that they may expose their client to if they proceed with their mission. These attorneys are the ones who think the mediation is useless if the other side doesn’t accept their view of the case.  Mediation is an opportunity to get feedback on the client’s positions. Mediation should be seen as an opportunity not only to advocate effectively on behalf of your client but to test the validity of your arguments against those presented by your opponent by a competent impartial neutral. Effective negotiators should set goals and objectives they want to achieve in the mediation to resolve their lawsuit. On the other hand, competent lawyers must be able to weigh objectively the merits of their opponent’s arguments and adjust their financial objectives to meet the reality of the situation. Adopt a new perspective – mediation is always a place to learn: Once you are truly convinced of this, mediation will never be a waste of time. One way to make every mediation worthwhile is to approach the effort with a view that you are coming to discover something new– whether it be a new fact about the case, or whether it be an awareness of some personal behavior pattern of your opponent and/or his attorney or an understanding of the level of commitment to their position that the other side has taken, everything that you learn at the mediation can be useful and sometimes decisive in the advice you give to your client to either settle at the last offer or continue the litigation to achieve greater gains.  It also gives the client a chance to participate in the process.

  1. Myth: Mediation communication can be used in court. 

Reality:  Mediation communication is confidential.

Unlike trials and hearings, which are held in public courtrooms, mediations are private and, with a few exceptions, confidential. If your mediation is court-ordered or conducted by a certified mediator, there are laws and rules which require confidentiality. (See the Mediation Confidentiality and Privilege Act, sections  44.401 – 44.406, Florida Statutes).  The Act always applies if the mediation is court-ordered, but the act will also apply in a non-court ordered mediation if either a) the parties agree it will apply or b) it is mediated by a certified mediator. The goal is to allow you and anyone at mediation and their lawyer, if any, to talk about legal and non-legal issues without fear of others (including the judge) hearing about it. While most things said during mediation will be confidential, there are some exceptions. (Three main examples of these exceptions are child abuse, elder/vulnerable adult abuse, or anyone saying that they are committing or planning a crime. If you are interested in all the exceptions, see section  44.405(4)(a)(1) – (6), Florida Statutes.  A signed mediated settlement agreement is not confidential unless the parties agree it will be confidential and the law allows the agreement to be confidential. Instead, the agreement may – and in some cases MUST – be put in a court file.

  1. Myth: The Mediator will Tell the Parties What to Do

Reality:  Decisions are made by the parties, not the Mediator.

The belief that the mediator will act as a quasi-judge and tell the people what they are going to do is another very common misunderstanding about the divorce mediation process. In actual fact, one of the greatest advantages of the mediation process is that the parties themselves retain control over all decisions made and agreements reached. This is very different from the litigation model where a judge, essentially a stranger in a black robe, imposes orders and judgments on the parties.

In mediation, the mediator’s role is not decision-maker but is to act as a neutral support system for both parties equally. The mediator helps the couple identify all the issues that they need to revolve around their divorce, gives them information and education about the law and other facts around those issues, and facilitates their discussion of those issues so that the parties themselves can decide what is the best course of action for them.

It is understandable that when people reach agreements together based upon what they think is right and fair, their agreements are much more sustainable going forward than court orders that tell the parties what they must do or not do, pay or give to the other party. In fact, a great advantage of mediating your divorce settlement is that you will make all the decisions together about what is best for you both and for your children as you go forward.

Parties to a conflict often believe that the mediator is the all-knowing conflict guru and will provide the right answer at the end of the day.  The mediator will often suggest alternatives or solutions for the parties to consider. The mediator’s neutrality, though, does not mean the mediator has the one right or “fair” solution. The mediator has not lived with the conflict and may not know all the relevant factors that influence a party’s thinking.

What seems fair to the mediator may not feel fair to the person hearing it.  Moreover, once a solution is expressed as “fair” by the mediator, he runs the risk of losing credibility as neutral from anyone who does not have the same perspective. Resistance might develop which will negatively impact the connection between the mediator and the party.

The ultimate answer will be the answer of the parties, not the mediator. They can, and will, arrive at that point with the mediator’s assistance.  Your clients will be at a far greater place of peace when the decision is theirs, as compared to a solution generated by another and imposed upon them.

  1. Myth: Complex Cases can only be resolved in court.  Mediation is for simple, low-end cases. 

Reality:  It is often better to resolve complex, high-end cases in mediation. 

Anything that can be decided by a judge can be resolved through mediation. Whether you have child custody issues that are difficult to agree upon or complex finances to split, mediation is still an option.  This is also where it would be useful to have a lawyer present, since they can make suggestions based on the intricacies of the law. While it may seem intimidating, mediators and attorneys are very good at simplifying complex legal jargon down to a level that the average person can understand.

Do not feel that the complicated legal aspects will disadvantage you and that the only option is to let attorneys hash it out in court.

 Myth: Words Mean Nothing. 

Reality:  As a mediator I have seen the power of the apology many times, first hand. 

An apology can be magical, cleansing, and healing. Practicing the 12-Step directive to “make a list of all persons we have harmed, become willing to make amends to them all, and make direct amends wherever possible” maybe one of the best life practices you can incorporate. In fact, adopting this philosophy can drastically improve relationships.

A genuine apology can be very powerful and go a long way towards repairing a relationship. Even if you don’t want reconciliation, an apology can bring closure and internal peace as well as reduce the possibility of negative repercussions in the future.

People in the wrong are often afraid to apologize; either because they believe that an apology will make them legally liable or open them up to blame and shame. However, we know that doctors who apologize to their patients for medical mistakes don’t get sued nearly as much as the ones who take a more arrogant attitude.

Many of the cases that end up in court – especially consumer and workplace cases – could easily be settled by someone making a decent/sincere and timely apology. The problem is – usually – both people think that they have been wronged. It’s often difficult to make an apology if you think that the apology should be made to you. Avoid this trap and base your actions on the big picture. Seek to see all of your disputes from the vantage point of the person on the other side.

People on the receiving end of the apology are often so grateful for the apology that almost anything works. You may simply apologize for the distress that the situation has caused both of you and your contribution to creating this distress.  Or, if it’s more appropriate you may want to say “I made a mistake and I am sorry. Hopefully, I will never do this again.”

There are 3 possible responses to any apology (a) the apology is accepted and the parties go forward with the goal of re-establishing their connection, (b) the receiver accepts the apology and the parties agree to disagree and move on – with their connection severed, or (c) the party who is receiving the apology is unable to receive it and that is the end. Even in this instance, the giver of the apology can feel that s/he has done her part – “kept her side of the street clean.”

A sincere apology is one that is made with (a) no expectations for how the other side will respond; (b) trust that if the bond between us is strong enough it will be re-established so long as we are both willing to be open and honest, and if not, not; and (c) knowledge that people come into our lives for a reason, a season, or a lifetime – and we do not usually know which or why.

  1. Myth: All Mediators are the Same. 

Reality:  Mediators have different skill sets, and may or may not be equipped to settle your case. 

Not all mediators are created equal.  Some are more experienced, some less.  Some are brash, and some are restrained.  Some will try and lean on you to get a deal, and others will just sit idly by and watch the parties die of old age before a settlement is reached.  Importantly – some will be persuasive to your client, and the other side’s client, and to their counsel (or yours) – and others won’t.  Don’t pick someone in the right price bracket – pick the right person – after all, you know your client and you know the other parties – get the personality, seniority/experience, and persuasiveness level right and you’re on the right track.

When it’s time for settlement, you and your clients need a mediator who is knowledgeable about the issues in divorce, understands the financials, gets the job done and a mediator who deals only with these types of cases. Whether it is divorce, alimony, custody, or post-judgment issues, allow Deborah Beylus of South Florida Mediation Services to mediate the case to help you negotiate what matters to you and your clients in a balanced manner.  561-789-0710.  www.southfloridamediationservices.com.