8. Mediation: How Soon Should the Case Be Mediated?

How soon you mediate depends on the kind of case you have. The ideal approach would be to mediate your case and get it resolved before spending money on attorney fees for formal discovery and preparation for trial. This usually only works in those cases that are not too complicated and in which the spouses are not too angry or bitter with each other.

The decision about if and when to mediate may be somewhat like the story of “The Three Bears.” If your case is like the “Baby Bear” in that you and your spouse are mature, communicate well, and will be able to work out your differences, you probably won’t need to mediate at all. You can probably, either directly with each other or indirectly through your lawyers, work out your differences with a minimum of fuss, anxiety, and expense.

If your case is like the “Mama Bear” in that you have moderate differences with your spouse, but the two of you can be somewhat rational with each other, can identify your differences, and are willing to exchange information necessary to make fair and reasonable decisions, you probably should move to mediation as soon as possible before spending a lot of money getting ready for a trial.

But, if your case is like the “Daddy Bear” in that everyone involved is completely bent out of shape, you can’t even agree what the issues are, or your spouse is hiding the books and records necessary for decision making, you probably need to save mediation for later, if at all.

In other words, there are two reasons to wait on mediation. First, if you don’t have information such as inventories of community property, tax returns, income streams, you can’t reasonably be expected to make any decision about settlement. In many difficult divorce cases, getting financial information is a central part of the problem. In child custody cases, the information that is lacking may be information about what an expert witness will say.

A second common reason to delay mediation is that psychology changes as the case progresses. Lawsuits are like war. Both lawsuits and wars are usually more popular in the beginning than after time has passed and the real cost and uncertainty become more apparent. Many who begin lawsuits solely interested in kicking butt and taking names mellow somewhat after receiving multiple bills and legal fees, giving depositions, and experiencing other joys of litigation.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 212-213.