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Letting Mediation Work - Divorce, Negotiation and Courtesy

All too frequently in divorces and post-decree actions, litigants will allow the emotional turmoil which drove them apart initially to affect their later thinking. Many months (and sometimes years) after severe breaks in relationships became insurmountable, parties will get emotional and will resort to needless posturing, vindictiveness and insulting behavior.  Most of the time, this occurs outside the courthouse.  Sadly (and all too often), this misbehavior will surface either during a mediation session or outside of a courtroom.

Happily, in our courts in Kentucky, we've done a good job of taking the emotional turmoil of the parties out of the official decisionmaking process, and focus on "big picture" items - equitable division, physical safety and best interests of children being high on the list of our concerns.  What we can't do, however, is force people who have become intractably bitter to make wise decisions, and sometimes, we wind up in needless court hearings because parties fail to come to reasonable positions during negotiations.

As a long time practitioner, I can say with certainty that the likelihood of success in a mediation occurs when:

1.  Parties need to leave any rancor on the sidewalk before entering the mediation.  This helps the litigant focus on the important aspects of the subject up for discussion, and eliminates the distraction of emotion.

2.  Parties should demonstrate courtesy and basic civility to everyone in the room - this costs nothing, and can go a long way toward defusing a situation which may be more tense than is necessary.

3.  Parties need to keep an open mind to alternative solutions.  In divorce negotiation, the best solution may be one that you never considered as a possiblity.

In closing, always remember that a mediation is not a game of poker or chess - it is a process by which a litigant makes decisions that will affect the rest of their lives, and needs to be approached with dignity, respect and calm

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