When Mediation Goes Wrong- A True Story

Mediations can and do go wrong, for various reasons. I had such an experience just recently.

I was mediating a rather nasty modification of conservatorship and visitation case. One of the parties had actually lost custody of the child at a temporary orders hearing for reasons that I will not go into in February of this year. Their final trial is set for October.

It was a very emotionally charged mediation, with emotions (and tensions) high on both sides. Part of the job of a mediator is to try and convince the parties (and sometimes the attorneys for the parties) to put emotions and hurt feelings aside and focus on what is in the best interest of the child-which means not only time the child spends with both parents but the way that both parents will co-parent in the future as to how to raise their child.

After listening to both sides of the story, and letting everyone vent, we finally got down to the business of making an offer 3 ½ hours into the mediation. The circumstances and dynamics of the case were complicated, to say the least. But, after another four hours of giving and taking, I took one party’s final offer to the other party (after reading it to the offering party twice to make sure I had everything correct). Everything was agreed to, and the biggest battle was over who would carry health insurance for the child.

One party spent an hour telling me how they should carry the insurance. That was part of the offer. The other party accepted the final offer! Awesome! Deal done. Or so I thought….

So I drafted the Mediated Settlement Agreement (MSA). Took it to both parties. One party returned it with no changes after 15 minutes. I checked on the other party. The offering party advised (after an hour of argument as previously noted) that they decided the other party should carry the health insurance. I tried to find a compromise that was reasonable to both parties. They refused to accept my solution. I suggested that they settle everything except that issue, and try that to the Judge. They both decided they would just try “everything”. Huge mistake.

I am not a Judge, but from hearing both sides, I knew who was going to win and who was going to lose. Both parties had attorneys. The moral of this story is what my father used to tell me: “Pick your battles wisely, and decide what hill you are willing to die on”. He was a Marine in WWII, so I always took his words to heart. In mediation, perhaps you should take my father’s advice.

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