Just the Facts: When Mediation Doesn’t Work

by josephnivin 

By now you’ve probably figured out that mediating your divorce makes sense in most cases — and you may be wondering about what types of cases are not a fit for mediation.

If there is domestic violence, child abuse or neglect, or parental alienation, litigation becomes the only option. It is generally impossible to mediate a case if:

• You are genuinely afraid of the other side.
• You and/or the children need protection from the other parent’s abuse.
• The other parent is actively trying to alienate your children from you.

In those cases, you generally need to go to court to get orders protecting you and/or the children from the other parent’s behavior.

That said, there are certain situations in which resolving your case in mediation is highly improbable. Sometimes people find themselves in court simply because an ex is hellbent on going there. In that case, an attorney can create a “game plan” to put you in the best possible position for settlement or trial. Even with an ex who wants his or her “day in court,” most cases end up settling before trial.

Sometimes it’s not the ex who is pushing you into court. I once represented a father who had already come to an agreement with his wife about how often he would see his children. The documents were drafted and ready for signatures. However, his mother-in-law did not like him, so she convinced his wife to change her mind about agreeing to the schedule. She only let him see the children at the home that she shared with this same mother-in-law, and she took him to court for custody.

The judge put into place the schedule that my client and his wife had previously agreed to, and then adjourned the case for possible settlement. After my client dutifully avoided arguments with his wife and mother-in-law, the wife withdrew her application for custody and agreed to follow through with the original agreement.  Nobody’s telling you to be a doormat, but as I always say, it’s always better if your situation is as boring as possible while you’re in court.  “Boring” usually means less expense, less stress, and fewer court appearances.

Whether your case is in mediation or you’re already in court, your lawyer can advise you on what to do (or not to do) to prevent your case from going into a tailspin. When your case is on the “settlement track,” a lawyer can advise you about whether the settlement options being discussed are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed and whether the proposed settlement has “holes” that leave you vulnerable to future litigation.

To summarize, if you are in settlement discussions with the other parent, then lawyers can advise you on issues that should be discussed, whether the proposed agreements are fair to you and to the children, ways to make the agreement less vulnerable to future litigation, and possible creative ways to come to a resolution that is in your child’s best interests.

Stay tuned for the final installment of my Just the Facts series. Have any questions about mediation, litigation, or any other family law matter? Don’t hesitate to reach out to me via my website or call me at (347) 642-0376.

Joseph H. Nivin, Esq.

The Law Offices of Joseph H. Nivin, P.C.

(347) 642-0376

118-35 Queens Boulevard, Suite 1220A
Forest Hills, NY 11375

The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168

Posted in Divorce | No Comments »