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Mediate First

January 23, 2019  | 

{3:30 minutes to read} It is likely that mediation can result in a negotiated agreement even if you mediate after you have entered litigation or tried negotiating through attorneys. But after having worked with couples who have first engaged in an adversarial process, I encountered distinctive behaviors that arose in the mediation which, while not unsurmountable, needed to be addressed.

Of course, I can’t definitively state that it was the initial adversarial process that made negotiations more intractable and it very well may have been the nature of the dynamics between the couple. But I believe that the following mindsets, which are exacerbated in an adversarial process, will make a subsequent mediation more challenging.

Unrealistic Outcomes Assured By Your Attorney

If your attorney overstates positive outcomes, your view of what is likely to happen in court is skewed. Then, in mediation, you believe that what objectively may be considered to be a reasonable stance by your spouse is so far and above what you were told that a court would do, that you feel your spouse is taking advantage of you.

Positional Bargaining

You were in a process in which your attorney was focused on achieving the best possible result he or she could achieve. This focus does not guarantee that your interests and the interests of your family will be met.
The longer an adversarial process continues, the more entrenched the position. The more entrenched the position, the more difficult it will be to give real consideration to underlying interests and resolution. Considering the underlying interests of both you and your spouse are vital in mediation. 
 

Heightened Anger

There can be nothing worse than seeing in writing, accusations of behavior on your part that you believe are exaggerated at best, and patently false at worst. But this is what happens in a process where blame is focused on the other side, which, of course, leads to denials and counter accusations from the accused party.

Questioning All Motives

If you both are engaged in reaching a resolution most beneficial to yourself, it can cause you to distrust any offer made, even if it appears to be something favorable to you. Since you have been battling with your spouse, you question why he or she would give something up, and suspect the worst.

So imagine that these are some of the attitudes before you start mediation, a process in which you are being asked to focus on interests, not positions; to make proposals, not assess blame, and that you are there to accept a settlement that works for both of you. There is a lot of work that will need to be done before you may be willing to engage fully in such a process.

And that’s okay. Mediation can still work, but recognize the hurdles you face and try to engage in the process fully to combat the remnants of the adversarial process. Better yet, before you consider an alternative process, make mediation your first choice.

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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