Clients who are interested in Divorce Mediation (Note: This article focuses on divorce mediation but the ideas hold true for all mediation paradigms) will often ask if mediation makes sense even if there will be issues that are not able to be resolved via mediation. Does it make sense to mediate if e.g. only 8 of 10 issues will be resolved via mediation? I believe the answer to this question is in the affirmative. Divorce Mediation serves many purposes and in discussing this question with a client, the true benefit of mediation will become apparent. (For the purpose of this article, I use the term "incomplete agreements" for agreements that leaves some issues unresolved.)
Litigation
Litigation is costly and traumatic. Even if there is agreement only only some of the issues in dispute, mediation will have served the purpose of lessening dispute, lowering eventual attorney fees, and making it clear to both parties that the matters in dispute are neither unduly numerous nor legally overwhelming. The fact that many issues were indeed resolved via mediation will make agreement on the remaining issues that much greater. Studies support such a conclusion.
"Good Will" in Mediation
Incomplete agreements show the parties that consensus on some issues was indeed attainable. This gives the parties the confidence to continue their communication into the future. Nothing succeeds like success. It is indisputable that agreement was attained because of the "good will" of the parties. The residual "good will" hopefully will continue until the final agreement will eventually be reached. Even in the cases where the disputed issues will need to be submitted to the Court, the level of rancor and confrontation will have been dramatically reduced.
Positive Communication
Finally, mediation teaches the parties that they possess the ability to communicate positively and civilly. This communication skill will be needed even after the divorce if they are co-parents or if unanticipated issues eventually arise. Giving this gift of positive dialogue to a divorcing couple is perhaps one of the greatest gifts any mediator can bestow.
Incomplete agreements will sometimes be the end result of divorce mediation. However, the legal fees saved, the "good will" created, and the positive communication experience will all serve the clients well both in the short-term and in the long-term. Divorce mediation is a multi-faceted process and it works, even when it leads to an incomplete agreement.