Mediation Myth: It’s Mandatory

By Jennifer Paine

Attorney, Cordell & Cordell

Maybe your attorney suggested mediation. Maybe your trial judge ordered you and your wife to mediate. Maybe your divorced friends have told you that mediation is the way to go.

If so, then you’ve probably heard these myths:

1. Mediation is mandatory.

2. Mediation is usually expensive.

3. Mediation is just deal-making.

This article will focus on Mediation Myth #1: It’s Mandatory.

This may be the spoken rule, but there are always exceptions. It is common for judges and mediation-prone attorneys (who avoid trial, even if that means cramming a settlement down a client’s throat) to pass mediation off as mandatory.

“Hey, you’ve got to do this,” or “we have a standing order for this,” or “this judge expects us to mediate,” or “everyone mediates in this county,” etc., are the reasons you will hear. Not so – at least, not for all cases.

For some cases, mediation may be mandatory. These are usually cases in which:

  • one party is or both parties are unrepresented and cannot conduct a trial;
  • the parties have attorneys and there are several issues that need airing (judges do not like to weed out the emotional issues from the legal issues) and narrowing; and
  • the parties have attorneys and there are only a few issues, which makes little economic sense for trial.

However, for cases involving domestic violence, unequal bargaining power, or an absconded party who has nothing to do with the case, mediation is usually not required.

For cases involving domestic violence or unequal bargaining power, the victim-spouse’s safety is more important than reaching a deal. For cases involving an absent party, one who is either physically not present or who refuses to cooperate, mediation is a waste of time and money.

That may be common sense, but what may not be common sense is whether your case falls into an exception.

If there is a history of domestic violence in your relationship, if you do not feel that your wife will cooperate (maybe she will give a “take it or leave it” offer and sit at mediation for three hours, draining your time and racking up your attorney fee bill), then you should discuss with your attorney whether you can opt out of mediation. This may require an order from your judge, so be sure to act immediately.

 

Read the series of articles on mediation:

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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