In cases where a collaborative divorce reaches an impasse, the parties often decide to take their dispute to mediation to break the impasse. It’s important for clients to understand that mediation occurs in three stages: competition, cooperation, and problem solving. It’s difficult to make progress in a collaborative mediation if one party expects cooperation and the other side is still in a competitive mode. During the early stages of collaborative mediation, it’s important to develop trust and manage emotions rather than try to settle issues. Settlement usually happens during the later stages of collaborative mediation when the parties have developed trust and clarified issues.
Collaborative mediation can succeed with many types of clients, but couples who can trust each other, have realistic expectations, believe they can control the outcome, and don’t have a power imbalance do best. It’s also important for clients to have effective communication skills and be able to control their anger. Effective collaborative mediation candidates need to be empathetic and avoid insulting the other side. By contrast, clients who are dishonest, have mental health or substance abuse issues, and a history of family violence may not be suitable for collaborative mediation.
The keys to a successful collaborative mediation include understanding the other side’s position, establishing trust, correcting power imbalances, being realistic, and knowing when to compromise. Both sides need to understand that nothing is agreed until all issues are settled. Keeping good records will help later if there is disagreement about what was said.
An important goal during collaborative mediation is to discover a zone of agreement that meets the important goals and interests of both sides. The parties can’t reach a settlement unless there are acceptable options within their zone of agreement. If there is no option within the zone of agreement, the parties must change their valuation of existing options or generate additional alternatives within the zone of agreement to reach a settlement. If they can’t, the mediation will fail.
A particularly difficult problem in collaborative mediation occurs when one side believes the other party is acting in bad faith. When this happens, it’s important for each side to openly discuss their concerns with the mediator and their attorney. If one side believes the other party is not bargaining in good faith, it’s difficult to reach agreement because there’s a lack of trust. The best approach is for both parties to understand it’s dangerous to attribute bad faith to the other side just because you disagree with them. Strong disagreement doesn’t necessarily mean the other side is acting in bad faith. It may be that the other side simply believes passionately in their position. A collaborative mediation will proceed more quickly if both sides presume the other party is acting in good faith, but from a different, strongly held point of view. It’s also helpful for both sides to look at the facts from the other party’s point of view.
An impasse can occur if a party does not understand the concept of sunk costs, which are losses that can’t be recouped. It makes no sense to throw good money after bad because you generally can’t regain money that’s already lost. In a collaborative mediation, it’s better to accept a modest settlement rather than spend more money to litigate a case and run the risk that you may lose both the cost of litigation and the gains achieved through settlement. This is particularly relevant when the parties are facing huge litigation costs if they can’t settle the case and it goes to trial. Avoiding the cost of litigation will save thousands of dollars so it’s often better to accept a lower settlement now than gamble on getting a larger settlement at trial after paying the huge emotional and financial costs of litigation. There’s no guarantee either client will win at trial.
