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Why mediations fail Posted on February 24, 2012, by

I was attending a continuing legal education seminar the other day entitled, “Domestic Mediation: Who, What, Where, When, Why?,” presented by a local attorney master mediator whom I really respect.  One of the topics covered was the question, “Why Mediations Fail?”  Here are the points that were made:

  • The parties are not yet ready to mediate and the mediation is held prematurely.  (One way to overcome this failure is to set up a second session after the court hearing for temporary orders is held).
  • An attorney sets unrealistic expectations for their client.
  • The attorney wants more money in the litigation process.
  • The emotion of a party is not validated.
  • The attorney lacks experience in the field in which they are mediating.  (This often happens in domestic law cases when a party’s lawyer “friend”  is going to help the party out in their family law matter by representing them,even though the lawyer does not customarily practice family law.)
  • The wrong mediator is chosen (different styles of mediator).
  • The party is not properly prepared with information needed to have a settlement.
  • The party opens negotiations with their bottom line and is not willing to move.
  • The party is not willing to come to a settlement and is using the process just to meet the requirement to mediate.
  • The walkaway option is better than the option being proposed in mediation.

Please comment, add, refute, clarify or inquire regarding this posting if you are so inclined.  I would love for this to convert to a helpful dialogue and resource.

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1 Response to "Why mediations fail"

  1. kirk says:

    I am in the middle of a divorce right now. My wife hired an attorney and I did not. I agreed to mediation under the assumption that my wife and I along with her attorney and the mediator would attend. However my wife was asked to leave to room by her lawyer so that the negotiations only involved her attorney me and the mediator. At this point I felt extremely teamed up on by her attorney and the mediator. I was not told that anything I talked about would be confidential and further more even if I had been, I would have been afraid to let her attorney see my hand sorta speak, to be completely honest. I was also told that I had to decide right then whether or not I want to accept the offer. This cause 2 problems, first of all I need time to think about the final offer and second I was not ready to be divorced. And as I understood it at the time, had I agreed to the stipulations, we would have went right into court and made the divorce final. In my opinion the court is not sympathetic to those who cannot afford an attorney. I can only imagine what happens to those people who not only cant afford an attorney but are not as resourceful or educated as I am. I can see the court system walking all over those people forcing or bullying them into accepting terms that not only is not fair but does them a gross unjustice.

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