When mediation talks break down . .
It is not uncommon for divorcing couples to work through almost all of the issues between them and then reach a stumbling block when the end is in sight. Sometimes there are legitimate reasonable differences, but other times, anger and hostility can work their way in. When this happens, many couples are tempted to abandon mediation.
Skilled mediators are accustomed to these situations. Often, we will advise clients to take a break, give themselves a bit of breathing space, and return to mediation when it makes sense to resume the discussion. Usually, this and other tools we often employ to navigate around roadblocks, will work to break through the impasse and bring the parties back to the table.
Sometimes, however, one party has, for whatever reason, dug their heels in and refuses to budge on a position. When a mediator is unable move the parties along in this situation, there are still other options to explore in an effort to resolve the dispute without contentious litigation.
Arbitration is one method that often effectively resolves cases with a small number of issues or narrowly defined concerns. Often, the parties will have resolved much of their case with their mediator, and submit only one or two issues for determination by the arbitrator. Arbitration comes in two general forms: binding and non-binding. In binding arbitration, the parties agree in advance to be legally bound by the arbitrator’s decision. In non-binding arbitration, the parties make their case to the arbitrator, but agree only to use the arbitrator’s decision as guidance for influencing further negotiations. The parties can select which form of arbitration suits their needs, and can further customize the process even more.
The arbitration can be conducted in the mediator’s office using a mutually agreed upon arbitrator who has no involvement with the case and has the appropriate professional background to render an informed and impartial decision. Often another skilled mediator is selected, but experienced divorce lawyers and even retired judges are also available. In some situations, the parties may agree that their own mediator may serve as the arbitrator. This is a much more timely and cost efficient method of dealing with a roadblock than abandoning mediation, hiring lawyers to litigate and starting the process all over again. The cost of litigation can be several times the cost of mediation and can drag on for years, but most importantly, the parties often feel their voices were heard and their concerns were addressed more thoughtfully in mediation than in litigation.
For example, one of our colleagues recently arbitrated a dog custody case. The Husband was moving to California, and the Wife staying behind in Massachusetts. Because of the long distance, it was not possible to work out a shared custody arrangement (which many pet owners do). This, unfortunately, compelled a “winner take all” result. Despite the “all or nothing” stakes, the parties were extremely happy with the arbitrator’s determination because they were both satisfied their voices were heard and their concerns were weighed. The parties were willing to pay a little extra for the arbitrator to prepare a short but thoughtfully written decision which assured them that all issues were carefully considered and the decision, while not a victory to one party, was fair. In mediation, also, the perception of the fairness of the process determines the parties’ satisfaction with the result.