An aggressive mediator is a hammer but not every case is a nail

The model of mediation we were all taught in the family court mediation training has the parties sitting together with the mediator in one room, while the mediator, tapping into the parties’ latent empathy skills and powers of rationality, kindly guides the participants into a mutually satisfying agreement. At the end everyone sings Kumbaya (just kidding about the last part).

Beginning mediators who have never participated in an actual mediation will use this model in their initial mediations, only to find them develop into angry, unproductive arguments. If I ever have the opportunity to mediate a family law matter involving two fully enlightened human beings, I might employ this model again. Given the unlikelihood of even encountering even one fully enlightened human being, and the exponentially greater unlikelihood of encountering two such humans who just happen to have a family law dispute that they themselves cannot resolve, I’m not optimistic.

So almost all family court mediation involves placing the parties in separate rooms and, through some mix of gentle persuasion and increasing aggressive arm twisting, getting them to reach a resolution that leaves neither party completely miserable. Almost every mediator starts with the balance towards persuasion–after all, it is nice if the parties leave the mediation happy–but at some point the mediator needs to employ arm twisting: if the folks attending mediation could resolve their disputes through simple persuasion they probably wouldn’t need mediation.

Mediators offer differing levels of experience, legal knowledge, and judgment. However where mediators typically differ as mediators is the balance they employ between persuasion and arm twisting, and how far they are willing to arm twist to reach a settlement rather than declare an impasse. A mediator who refuses to engage in any arm twisting will have a low rate of settlement. Hammer both parties with their worst case scenarios, and place great emphasis on the litigation expenses necessary to go to trial, and a mediator can get all but the most obstinate or unrealistic parties to settle.

The gentle mediator will rarely have these settlements fall apart between the mediation and the final hearing to approve the settlement. Further the parties who reach such settlements without much force being applied will likely be happy with the resulting agreement later on. However such mediators will not settle a substantial percentage of the cases they mediate and attorneys may be reluctant to use them–especially attorneys who don’t like trying cases.

In contrast, an aggressive mediator will have a high rate of settlement–and attorneys who don’t like trying cases love such mediators. A big problem with an extremely aggressive approach is that some cases will settle not because both parties compromise but merely because one party simply gives up. That some percentage of these agreements are repudiated between the mediation and the final hearing may not be something these mediators are even aware of. When these settlements fall apart, the attorneys for the parties are more likely to blame the party backing away from the agreement as being “unreasonable” than blame the mediator for pushing one party too hard.

The aggressive approach can also save time and money because the mediator is pushing parties to give up on goals rather then exploring options that might leave both parties slightly better off. A party demanding every Thanksgiving with the children can be told that no family court judge is going to award that, so move on. However a gentle mediator will take time to explore why that parent wants every Thanksgiving and whether that parent is willing to offer the other parent something valuable in return. Through this process, one can help the parties reach agreements better tailored to their unique circumstances–but again such a process takes time and adds to the mediation costs.

Every mediator should probably have a personal philosophy of when and how hard to engage in arm twisting to reach a settlement. Attorneys selecting mediators should consider both parties and determine what approach might work best. There are times an aggressive mediator may help an unrealistic party be reasonable, whereas a more gentle approach will fail to generate any concessions. There are also times an attorney has a client who cannot withstand the rigors of trial so that attorney needs a mediator who will absolutely settle the case. Other times a gentler approach may help a party move to a reasonable position in a manner that won’t generate buyer’s remorse and cause the agreement to be repudiated before it’s approved.

It’s a sad commentary on our family court bar that the most aggressive arm twisters are the most sought after mediators. I think it’s better to try a case than have a client reach a settlement that leaves him or her unhappy, especially if there’s a reasonable chance that client might get a better result at trial. Experience shows that so long as the mediator isn’t completely passive in the face of one or both parties’ resistance, a gentle mediator can often resolve some issues and narrow other issues in a manner that leaves both parties reasonably content. There’s a use for arm twisting mediators, but not for every case.

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