Mediation is an alternative to trial, not to litigation: avoid premature mediation

Posted Saturday, March 26th, 2011 by Gregory Forman
Filed under Mediation/Alternative Dispute Resolution, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There are some common issues that lead to mediations failing to resolve family court disputes.  One common problem is when one or both parties to the dispute continue to take an unreasonable position at mediation. Short of browbeating the parties–which vitiates the concept of mediation–there is little else the mediator can do to settle such cases.

However, often when the mediator has failed to resolve a family court dispute it is because the parties have engaged in mediation prematurely.  The general public, and many attorneys, see mediation as a less expensive alternative to litigation.  In fact, mediation is a less expensive alternative to trial. For cases in which the basic facts are not contested (or are contested within a narrow range), but it is the consequences of these facts that are at issue, mediation can resolve disputes without litigating first.  However, for family law cases in which basic material facts remain in dispute, mediation cannot substitute for litigation.  Mediating prematurely is unlikely to lead to resolution or only lead to resolutions in which the mediator attempts to browbeat one or both parties.

There are many factual issues which may never be agreed upon by the parties no matter how much discovery is undertaken.  Such factual disputes can be resolved by asking the parties to compromise.  However factual issues regarding how much income one party makes ought to be resolved, or at least narrowed, before the parties engage in mediation.  Few things are more frustrating for me as the mediator than seeing the mediation fail because basic fact gathering is incomplete.

I’ve had a mediation in which a husband claimed his current income was approximately $4,000 a month while his wife claimed his income was approximately $5,500 a month.  Neither party brought proof of his current income.  While I can ask parties to compromise on certain factual issues–such as how much of a car allowance to treat as income or whether one party’s professional school loans should support a deviation from child support–why should either party compromise on the issue of the husband’s income when the correct answer is easy to determine?  Browbeating the parties to compromise might “settle” the dispute but at the cost of vitiating the non-coercive philosophy of mediation.

I had another mediation, a DSS mediation, in which the suitability of one party’s home was in dispute.  No one had thought to bring–or even take–photographs of this party’s home.  Obviously none of these parties entered this mediation with the idea that they might have to try their case anytime soon.   They were hoping I could make the case settle.  But, short of browbeating, no mediator can settle a case in which no evidence has been gathered to resolve basic factual disputes.

Family courts are often requiring mediation within 60-120 days of the temporary hearing.  Too often attorneys forgo discovery until after mediation in the hope that mediation settles the case.  But if material factual disputes remain that are subject to resolution or narrowing through discovery, mediation is not a suitable place to resolve those disputes.

Another way in which mediations can be conducted prematurely is when one party “won too big” at the temporary hearing and no trial date in imminent.   Where one party has no expectation of doing as well at trial as the temporary order provides, settlement will require that party to give up some of the relief that was obtained at the temporary hearing.  That party can basically use the temporary order to extract [extort?] greater concessions than that the party could expect to receive if a final hearing date was scheduled.  The other party, knowing this, will want to avoid offering these concessions and will instead prefer to get a final hearing date scheduled before settling the case–so as to put greater pressure on the party satisfied with the temporary resolution.  I’ve had more than one mediation in which the opposing party won too big at the temporary hearing in which a generous settlement proposal was rejected at mediation but a less generous proposal was accepted once trial was imminent.

A mediator can’t tell if the mediation is being scheduled prematurely.  However an attorney who schedules a family court mediation while basic important facts remain in dispute because discovery is incomplete or who schedules a mediation when one party has “won too big” but isn’t yet willing to consider concessions to settle the case isn’t being frugal.  That attorney is simply setting the mediation, and the mediator, up for failure.

Treat mediation as a substitute for trial, and not as a substitute for litigation.  Your cases are much more likely to resolve in mediation if you do.


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