Potential divorce mediation clients are sometimes concerned that they will not be able to come to agreement on decisions that need to be made to end their marriage.  

A mediator cannot guarantee a successful outcome, measured by both spouses being satisfied with the final agreement. Yet most mediations succeed, even many that seem doomed to failure because of impasse. Why is that? 

When mediation is in jeopardy with my clients, I take every opportunity to point out the risks of leaving mediation and going to court—an indefinite delay in the outcome, polarization of children, emotional impacts, disintegration of trust and loss of control over the result.

Sometimes, simply pointing out how ugly the alternative is helps you try harder to find a solution that will work for both of you.

However, this may not be enough to motivate a shift for an entrenched spouse. So then what? 

In handling a potential impasse in divorce mediation, ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable. 

In an effort to rescue a mediation that is facing impasse, here are some suggestions I share with my clients:

1. Ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable.  
2. Think through possible outcomes in litigation. This may require a consultation with an attorney, which I highly recommend in these situations. In fact, I have often employed a strategy of engaging a neutral attorney to explain how a judge might decide a similar issue. Frequently you will hear that the outcome in court could be uncertain. So I point out that, by leaving mediation, you are gambling on the result. Is holding the line on your position worth it?
3. Consider the full cost of litigation. A mediator can ask you to analyze the total cost of taking a divorce to court. This isn’t just about the money you will spend on attorneys, experts, etc. What about the costs associated with spending time in court, the emotional stress, the impacts on your future co-parenting and your relationship with your children? Is the cost of not changing your position worth what you will expend in money, energy, time and stress?
4. Don’t underestimate the value of settlement. How much can you save (see above) by shifting your perspective closer to that of your spouse and perhaps reaching an agreement? How much are you willing to pay for maintaining a good relationship with your children’s other parent? How much is it worth to you to put this experience behind you more quickly by staying in mediation and working to an agreement?
5. Get help. One of the key features of the mediation process is that there is a wealth of neutral knowledge that can be brought into mediation to assist the mediator in helping you work through your differences. For parenting disputes, we can engage a child specialist. While I have strong financial skills, sometimes it may be better if we bring in a financial neutral as a fresh face to explore options for settlement. Finally, we can agree to bring in a collaboratively trained attorney for each of you for one session, to provide legal support that is focused on problem solving.

​I will use whatever tools I have to produce a successful outcome, As long as you don’t give up, I won’t either.  

Every mediator can tell stories about how mediation has succeeded—when it has resulted in an agreement between the parties.

Of course, mediators are trained to accept the possibility that a case will not resolve through mediation. Sometimes, the fact that the parties in a dispute spoke at all, with the help of a mediator, may help them move closer to an agreement in the future— in a setting other than mediation or perhaps even in front of a judge.

In divorce mediation, when spouses are having a hard time coming to agreements—when you are thinking of giving up—my tendency is to ignore that initial training which would suggest that I “let it go.”  Why don’t I easily accept letting it go? Because if a divorcing couple cannot come to an agreement in mediation, then the next stop is likely divorce court. And I would like to help you avoid that outcome if at all possible.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Transitioning from mediation to litigation poses significant risks and consequences, all of which impact human lives. Here is a short list of the pitfalls:

1. Stalemate—Once litigation begins, the process slows down, and progress can be elusive, taking months if not years. Imagine what it means to put life “on hold,” waiting for closure. For many, healing can only begin when a divorce is finalized. In litigation, healing can be delayed, and the adversarial process itself may extend the time it will take for true healing.
2. Polarization within the family—Ask adult children of parents who had an “ugly divorce” how this affected their image of their parents and how they were impacted by a litigated divorce, especially if they were a part of an invasive custody evaluation.  
3. Mental health issues—Divorce is emotional, conflict is emotional, and a litigated divorce can trigger extreme emotional instability, both for spouses and for your children.
4. The disintegration of trust—Some divorces start with trust already threatened or diminished. Litigation can erode remaining trust and threaten any hope of rebuilding it.  
5. Loss of control – Once mediation ends and litigation begins, you are basically giving up most of your control over the outcome. That control goes instead either to the attorneys who attempt to negotiate a settlement or to a judge, who doesn’t know you at all but who will render a final decision, which is perhaps not what either of you wanted.
   

These life-altering risks and consequences compel me as a divorce mediator to make a concerted effort, by any means necessary, to keep you in mediation—to protect you and others from the extreme damage of litigation.
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In a future entry, I’ll discuss possible interventions I use in the mediation process to get a mediation that is threatened by termination back on track to a final settlement.