Mediation is a viable option for some people. For others, it is absolutely destructive. All to often the party who is mediating in good faith loses the momentum of the case to the party who is just using mediation as a way of gaining tactical advantage in the litigation. It is a classic example of nice guys finishing last.
Mediation is for people who are ready, willing and able to get down to business. Litigation is for everyone else.
Generally, mediation works best in three scenarios:
1. Where the parties are parting civilly and they agree in good faith to mediate all issues;
2. Where the parties are high profile celebrities for whom the specter of making the world privy to their private financial and personal affairs eclipses any animosity they may have toward one another; and
3. Where there are no minor children.
Mediation is, by and large, an extra-judicial process that requires the parties to act in absolute good faith and with impeccable cooperation toward the common goal of achieving complete resolution on all issues.
Mediation is not without its risks. For example, if the mediator is not well versed in applicable family law, he or she may not properly advise the parties of their respective rights and obligations under the law. Similarly, a mediator might defer to certain wishes of the parties that are not in accord with the law, and in so doing draft a judgment or order that can be successfully challenged at a later date. To avoid this problem, the better practice is for the mediator to require both parties to submit the mediated settlement to their respective attorneys for approval.