In divorce mediation, when someone examines his or her BATNA (Best Alternative to a Negotiated Agreement) they are looking at both the best and worst outcomes if their dispute were to be decided by a Judge. Of course it is often difficult to predict exactly what would happen in court, which is why mediation makes so much sense because it allows people to maintain control over those decisions that impact them the most.
So why do some people still refuse to consider mediation?
Based on what I have heard from people who contact my office to schedule a consultation to hear about mediating their divorce, if their spouse is not willing to come in, it is either because they are not ready to let go of the marriage, or they have a concern about the mediation process itself.
If one spouse is not ready to let go of the marriage, I discuss with that spouse whether the other spouse is likely to change his or her mind, and stay in the marriage. Most of the time the answer I get is “no, they are not going to change their mind.” And while I certainly sympathize with the spouse who desires to stay in the marriage, I do not believe I am serving them properly if I don’t point out that there may come a time when the spouse who initiated the idea of a divorce is unwilling to wait any longer and will feel the need to retain an attorney to “get things moving.”
The second concern, about the mediation process itself, can be addressed simply by saying that nothing that happens in mediation is binding until a legal document has been prepared and signed by each of you with all the required legal formalities. Each of you may also have any legal documents that I prepare reviewed by your own attorney before you sign them, so there is really no risk.
So what’s your BATNA? If you want to maintain control over the decisions that are going to have a great impact on your life, and you want to avoid spending thousands of dollars engaged in a hurtful legal battle with your spouse, it seems quite clear that your BATNA is to reach an agreement with your spouse that works for both of you. And that is exactly what we do in mediation.
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Greatpoints, Dan. Who would want a stranger(a judge) deciding your fate. The judge doesn’t know you or your family.
I’d add to that Dan, by saying that a judge not only doesn’t know you or your family, they really have no emotional ties to you, your children or your interests. Maybe you come out well from their decision or maybe you get surprised and do poorly. Mediation is not only for the moment but also about learning about the other party, their underlying interests, finding common ground, managing differences, making good trades based on each side’s priorities and hopefully learning a respectful manner in which to communicate from this point forward.
Great article Dan and so important to bring up. What the other spouse doesn’t yet realize, is that if they don’t agree to at least come in and explore mediation as an option, the alternative is going to be litigation – with all the vitriol that that entails!