Mediation Options in the Midst of Litigation

In an ideal divorce mediation process, the couple begins the dissolution of their marriage by meeting with the mediator, rather than with court filings.  They work over a series of mediation sessions to gather information, identify interests, generate options and ultimately reach an agreement that works for both of them.  Their lawyers support them from the sidelines during the mediation process as needed and take care of the non-contested paperwork once an agreement is reached, submitting the agreement to the court for entry of the divorce judgment.  This ideal, however, is not always possible.  Sometimes divorces start with court filings and adversarial litigation and sometimes one or both parties are not comfortable sitting across the table or mediating without lawyers present.  These families may want to avoid expensive and protracted litigation but feel there is not an option.  In this situation, another mediation model that I refer to as “muscle mediation” may be useful.

Muscle mediation

Mediation purists may consider the term “muscle mediation” an oxymoron and in this model the parties may lose some of the benefits of a more “creative” traditional mediation process.  It can, however, be helpful and efficient in bringing the case to a satisfactory resolution even in more difficult situations or the midst of litigation.

The “muscle mediation” model is akin to the mediation model used in business and personal injury mediations.  In this model each party has a lawyer and the case may have been filed with the court and be well into the litigation process.  In advance of the mediation, the lawyers prepare by exchanging all of the relevant financial information and providing this information to the mediator as well.  Each lawyer may meet with his or her client in advance of the mediation to prepare for the negotiations.  The case is then scheduled for one or two half day or full day mediation sessions which the lawyers and the parties attend.  The mediation begins with each lawyer giving an opening statement outlining the issues.  The couple and their lawyers then break into two rooms and the mediator shuttles between the parties assisting in the negotiation.  The role of the mediator may be much more evaluative, looking at what the court might do if the parties do not reach an agreement, in this process than in a more facilitative traditional mediation process, where the mediator is more likely to look to the parties to generate options for resolution.  The lawyers also engage in the negotiation and help their clients generate proposals and evaluate the costs and benefits of each proposal exchanged.

Reaching consensus

When an agreement is reached, the mediator summarizes the agreement, and then turns the matter back to the lawyers to complete the drafting and submission of the agreement to the court.

If you are involved in a difficult litigation process, are frustrated with the pace and cost of the proceedings and are ready to come to the table to work towards resolution, “muscle mediation” may be an option worth exploring.