Mediation Barriers

Mediation Barriers

We asked several divorce mediators in the Greater Toronto Area how to recognize and overcome some of the most common barriers to a successful mediation. Here’s what they had to say.

Edited by Jeffrey Cottrill

Barrier #1:

“Litigation will give me everything I want”

Clients often believe that they can “win” by going to court, and therefore it may be contrary to their interests to participate fully in mediation. Three other misconceptions often underlie this belief:

  • First, that his or her case has a very high probability of success. Unfortunately, lawsuits are fuelled by the fact that almost everyone feels that way. Lawyers often present best-case scenarios, or clients “hear” what fuels their optimism. Since 95-98% of cases settle, why not reach agreement at an early stage — before you have spent the big litigation bucks? An objective risk assessment would protect many people from spending their savings and years of litigation only to be disappointed, frustrated, and in debt.
  • Second, that the ideal is “winning” and having the other person “lose”. Divorcing couples pass through many stages of grieving and often litigate when angry. Later, they regret their actions when they enter the stages of sadness or eventual acceptance. Most importantly, litigators never consider the downside of winning — namely, that the partner whose cooperation is critical for their ongoing relationship with the children or for financial support will no longer be willing to offer assistance.
  • Third, and most important, is that those who choose an adversarial course of action often have not reflected on the damage to children from living in a high-conflict zone. Conflict between parents is the most damaging factor for children of divorce. If you are fighting for the children, it is rarely in their interest.

Dr. Barbara Landau, president of Cooperative Solutions, is a psychologist, lawyer, and mediator in Toronto. She assists parents to reach fair agreements in the best interests of their children. She can be reached at (416) 391-3110. View her Divorce Magazine profile online.

March 28, 2016
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