Why Should I Mediate?

James R. Becker, Jr.

August 20, 2019

We often get asked/told some variation of why should our client mediate or mediation is a waste of time.  While we completely understand this sentiment, it is also completely wrong.  Over the past week we have had a couple of cases move towards conclusion along very different paths and these paths illustrate very clearly why we believe strongly in the value of mediation.  This is not to say that you should always compromise.  There are some cases where compromise does legitimately put children at risk and we never advise our clients to do that.  There are also some offers that are so stupendously bad that you simply cannot accept it.  This is where you have to rely on the advice of your attorney.  However, these types of cases are few and far between.  The following cases are far more normal.

The first was a case seeking to modify a parenting plan.  Our client had very valid concerns about the other parent's abilities as a parent.  We filed the petition to modify the existing parenting plan and began the litigation process.  We went into mediation.  Our client was not thrilled with the idea of mediation and felt it would be a waste, but went along on our advice and reached an outcome that she controlled.  Did she get everything she wanted?  No.  Only if one side is doing something very wrong do you get everything you want in a mediation.  However, she was able to get put in place all of the protections she wanted for her children.  At the end of the day she was able to achieve her goals and reduce her litigation costs.

The second was a case to establish a parenting plan.  The parties went to mediation, but neither side was willing to compromise their position in any respect or accept that they had any risk of getting an unfavorable outcome.  The case was tried over several days and ultimately the judge gave the parties a parenting plan.  Neither side liked the plan.  Each side spent several thousand dollars in legal fees and was given a plan that is ultimately to no one's liking.

So, why do you mediate?  Why do you compromise?  In one case, you have some degree of control and in the other you roll the dice and hope for a good outcome.  The very best of lawyers cannot guarantee what any judge will do with any set of facts and family law cases are very seldom black or white.  If you put your or your child's life into the hands of a third party, you can have no idea what the outcome will be.  That is why you mediate disputes.