When a client won’t provide information. Part 4: Informed Decision Making in Mediation

I’m working with divorcing clients, and Wife is sharing information about her budget. Husband refuses to do the same. I ask whether he has concerns about providing such information, and he is not forthcoming. He has the facts and figures, but won’t tell us about them, bring in financial statements, etc. To make a long story short, Husband will not fully participate in the mediation process.

What happens?

Mediation is a voluntary process, and it is the parties who make the decisions: Will they schedule a mediation session? After the first one, will they return for the next? Will they reach agreements? Each party makes these choices for her/himself.

Similarly, each party – each spouse in this example – decides whether to share information about earnings and expenses, assets and liabilities. Once in awhile, a party decides not to.

Then what?

A mediator has no authority to compel parties to provide information; s/he is unlike a judge in this way. If a party won’t share it voluntarily, all the mediator can do is:

  • explain once again why giving the information is necessary (so that all parties will have enough information to make decisions);
  • explain that the mediation will have to be terminated if the party doesn’t change his/her mind; and then,
  • end the mediation.

In my experience, unwillingness to provide information most often becomes apparent during the first phone call or at the consultation; in other words, prior to any session being scheduled. If it happens over the phone, that part of the conversation usually goes something like this:

  • Mediator: In mediation, you would both need to share information with me and the other party. Do you think that you and your spouse would be willing to do this?
  • Potential Client: No, s/he will never go for that.
  • Mediator: Perhaps you can talk this over with your spouse; or, s/he is welcome to call me, so that we could talk, just like you and I are talking now.
  • Potential Client: It would be a complete waste of time.
  • Mediator: From what you’ve just told me, mediation is unlikely to work in your situation. Sometimes, a spouse will be more flexible and open once the process begins. But, just based on what you’ve shared, mediation doesn’t sound promising.
  • Potential Client: No, but thank you for your time and explaining all of this to me.

A crucial aspect of mediation is ‘informed decision making’. When a party withholds information, the other party is unable to fully know what the situation is, and would be deprived of the opportunity to make thoughtful decisions. To work (or continue working) with parties under these circumstances would be unfair to the party denied the information.  Mediation is not appropriate; if the process has started, the mediator must end it.

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All blog posts are for informational purposes, and should not be considered as legal advice.

Informed-decision making in mediation (Part 2)

In my previous post, I set out the following type of situation, to emphasize how important it is to have information before making major decisions.

You find a great house to buy.  It has so many rooms!  What great condition it’s in!  What a bargain!!

Then, a week before the closing you learn that the property nearby has been zoned for a sewage-treatment plant. 

Does having this new information matter to you?  Probably it does, and you will offer a lot less money for the house, if you still want it at all.

In a divorce, spouses are making vital decisions about their lives, whether or not there is a marital home to consider.  And so, in a divorce case, the mediator will have the parties gather and share information. Additionally, the mediator work with clients to make sure that they understand financial and other information.

Let’s return to the situation I posed yesterday, where the spouses have a house, and one wants to buy out the other.  To learn about the clients’ knowledge and understanding of what they are proposing, I would ask questions that may include the following:

  • How much is the house worth, and how did you come up with that amount?
  • Is there a mortgage, and if so, for how much?
  • Where will you get the money for the buy-out?
  • Will the buy-out be made in one payment? More than one? When?
  • How will the mortgage be paid after the buy-out? Where will that money come from?
  • How much are the utilities?
  • Does the house need much work, and if so, how will that be paid for?  The roof?  Boiler?
  • Do you want/will you be able to get the house in your name alone?
  • What about the capital gains tax?
  • What are your other expenses, and how will you each handle them?

Let’s say that these clients have answers to my questions.  Both spouses understand the finances, have a realistic plan going forward, and are aware of the implications of their proposed agreement.

As a mediator, I’m satisfied with their agreement.  (Of course, there are other matters for the spouses to decide, and many of them might have an impact on their buy-out plan.)

In my mediator role , I am much less interested in what decisions the parties make, than I am in whether the parties have a very good idea of what they’re doing, and what the consequences could be.  In other words, that their decisions are ‘informed’.


Next time:  What if clients make a choice I don’t like?  What if their agreements won’t work?

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All blog posts are for information purposes, and should not be considered as legal advice.

Nice house. Great price! But, did you know about the airport? Informed-decision making in mediation(Part 1)

Almost everyone, I would think, is willing to put in time and effort before buying a new home.  There are a lot of questions to be answered:  What condition is the house in? What is the neighborhood like? How are the schools, shopping and public transportation? Are houses of worship nearby? And so on. A house that you would consider ‘a steal’ at the price of one million dollars might seem overpriced at $200,000, if you were to learn that a waste-treatment plant or airport is about to be built just up the road.

You would want to know about that new development, right?

The point is that, when making big decisions, it is important to have enough information so that the decisions will be good ones. In a divorce, spouses are often making some of the biggest decisions of their lives, in many cases including ones about their home. Fortunately, in divorce mediation, ‘informed-decision making’ is a pillar of the process, and my next few blogs will be devoted to this subject.

As I’ve discussed in another post, it is the parties who make the decisions in mediation, and not the mediator. But as a mediator, I work with clients so that their decision making is ‘informed’.

What does this mean?

Example: Husband and Wife meet with me. It is their first session.

  • Wife says to me:  We have a house that we bought when we got married. I’ll be buying him out, and paying him a million dollars.
  • Husband says:  Yeah, that’s what we’ve decided on.”

As their mediator,do I have a problem with their agreement?

No, at least not yet.

So should I respond by saying, “That’s great! Let’s move on to the next issue.”?


Why not?

Because by doing so, I wouldn’t be checking with the parties as to whether their decisions are informed.

So, I’ll ask them questions perhaps beginning with:

  • How much is the house worth, and how did you come up with that amount?
  • Is there a mortgage, and if so, for how much?
  • (to Wife) Where will you get the money to buy your husband out?

Next time:  More questions that I’m likely to ask clients; and, working with spouses who have solid answers.

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All blog posts are for information purposes, and should not be considered as legal advice.

But I’ve known one of the parties for years . . . How can I mediate with them? (Part 2)

In my previous post, the questions are posed: Can a mediator act impartially in a case if s/he already knew one of the parties before they come to the mediator’s office? Should the mediator automatically refuse such a case? Because, if a mediator already knows one of the people, won’t s/he have already formed an impression or made judgements, and so be biased?

Authors/mediators Gary Friedman and Jack Himmelstein have written that:

The question for us as mediators isn’t how to avoid judgments [about the parties]. It is what to do as they arise, which they inevitably will, to keep them from blocking or limiting our effort to be fully present for each party.

What’s required is that the parties are satisfied that the mediator can be neutral “through ‘being there’ for both of you in order to help you.

I’ll want to understand what is important to both of you under your dispute, and help you understand yourselves, and possibly each other more fully. If I’m going to do that, you both need to have confidence that I haven’t already chosen sides and that I’ll never do that as part of this process.

And if at any time any of you feel that I’ve moved off my neutral position, and become partisan in the sense of being or appearing to be more on one side than the other, I’d want you to bring it up in the mediation.

In the particular case that the authors are referring to, each of the parties to the dispute had a lawyer representing them. Perhaps the attorneys could have assisted or ‘protected’ their clients if the mediator had strayed from his neutral role. But, whether or not clients have retained attorneys, I think the principle is the same. Can the mediator work in the same manner with the different parties, trying to help each to the best of his ability, and in a way that is fair and satisfactory to them, even if the mediator knew one of the parties beforehand?

Perhaps I should say that I have never had such a case in my own practice, very likely because knowing one of the parties, I would never had considered it. But I find the authors’ views persuasive; what they say here intuitively makes sense to me. There have been several occasions over the years when I’ve felt that I could have helped them, despite having known one of the parties in some way in the past.

Would I ever take such a case? The answer would depend, in part, on my relationship with the parties; I would need to be convinced of my own ability to act fairly.  I would have to disclose the nature of my relationship with them, so that both (or all) would be fully informed.  I might ask them to take some time to further think over the question; and, if they were to come back and say, “We understand that you knew one of us before, . . . (or, “I understand that you know her better than you know me, . . .), but we feel that you won’t take sides,” I might well accept the case.

And, I can see how it could go very well.

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All blog posts are for informational purposes, and should not be considered legal advice.


But I’ve known one of the parties for years . . . How can I mediate with them? (Part 1)

In the first mediation training I attended, in 1997, I learned that even a brief interaction with a potential client – without the other party to the dispute being present – could result in bias; or, in the appearance of bias. In the numerous trainings I have taken since, this idea has never been challenged.

Question: If a twenty minute phone call  with someone the mediator has never talked to before can lead to bias, how is it that a mediator could know one of the parties for years and still be considered impartial?

Gary Friedman and Jack Himmelstein raise this question in their book Challenging Conflict: Mediation Through Understanding (Chapter 10).

I don’t automatically disqualify myself as mediator if I’ve had previous contact with any of the parties or have a current relationship with them as friends, colleagues, relatives or the like. But I am quite wary of mediating with people I know.   So alarm bells went off when my assistant informed me that neighbors whose dispute was notorious in our small beach community had asked if I were available.

The authors state that mediators will “inevitably” form ideas about the parties they work with: “He’s too aggressive.” “She’s self-righteous.” “He’s been wronged.”  They go on to say that:

The problem is hardly avoided by simply eliminating from one’s practice any parties the mediator has known previously.

The question for us as mediators isn’t how to avoid judgments. It is what to do as they arise, . . . , to keep them from blocking or limiting our effort to be fully present for each party.

Next time: How the authors answer this question.

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