Mediation vs. the truly uncompromising party

Anyone familiar with this column knows that I am a big proponent of mediation. But not every case can be mediated.

When “Darlene” called me, she said that she and her partner “Jeremy” were ending their relationship. Darlene wanted to talk out all of the issues with Jeremy, and to work together with him to reach the best agreements possible, to allow each to move on, and to insure that their children would be well cared for.

Darlene called me, and we briefly discussed how mediation works. She liked hearing that she and her husband would have a chance to communicate; they hadn’t really talked in months. Darlene seemed happy that she and Jeremy would be the ones making the decisions that would so greatly affect their family (as opposed to a judge deciding matters for them). She understood that by talking over the issues between them, and by staying out of court, tensions could be reduced.

Our short conversation ended with Darlene saying that she would speak to her husband and get back to me.

Within a few days, Darlene called again saying that Jeremy had agreed to come in for a consultation. We scheduled a time for the three of us to meet together.

At the consultation, I soon learned from Jeremy that he (perhaps with the help of a lawyer) had already written up what he considered an agreement for him and Darlene. He wanted this so-called “agreement,” which the wife had not helped to create, to be the final agreement. For Jeremy, the purpose of mediation was to begin and end with what he had prepared, perhaps allowing for minor changes.

I explained that we could discuss his proposals during mediation. Jeremy would be welcome to share his ideas and concerns that were reflected in his document. However, his agreement would not be the basis for all discussion (just as it wouldn’t have been had Darlene prepared one and demanded that the outcome adhere to it).

Not surprisingly, Jeremy, who perhaps tellingly had arrived to our appointment 30 minutes late, wasn’t happy with what I had to say. Darlene was clearly saddened at this breakdown before we had even had a first session. But she understood, and seemed to appreciate that proceeding as Jeremy had been demanding wouldn’t have been mediation at all.

We didn’t meet again.

A discussion along the lines that Jeremy was insisting on would probably have been very limiting. Most or all questions would have dealt with his — and only his — plan. The conversation would have been stunted, the freedom to express and consider different views and ideas (often critical in reaching agreements) strongly discouraged.

In mediation — even during a consultation — parties who have up until then been rigid and uncompromising often demonstrate a shift in their thinking and a willingness to be open-minded; not to give in, but rather to be open to the possibility that there may be other ways of having their needs met. Such people can let go of their ultimatums, and engage in a constructive dialogue.

For other people, it is “my way or the highway.” They won’t consider any plan other than the one they walked in with. Parties like this are poor candidates for mediation; they won’t get anywhere in the process, because they are unwilling or unable to engage in it. Often, they wind up in court, expecting a judge to decide in their favor.

Quite frequently, they are disappointed with the outcome.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabi‌n@lc-‌media‌te.com, (718) 229–6149, or go to lc-me‌diate.com/‌. Follow him on Facebook at www.faceb‌ook.com/‌lchab‌in.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.