Question: After 24 years of verbal abuse, I left my husband and filed for divorce. My lawyer said before I could get to court, my husband and I would be required to go to a mediator. He said this was a court rule or law designed to help us try to work through our problems and settle as many of the issues as possible. I told my lawyer repeatedly that my husband had dominated me during our marriage, and I felt uncomfortable being in the same room with him or settling anything without having time to understand everything. My lawyer assured me there were protections in place that would allay my concerns.

Because my lawyer didn’t explain mediation to my satisfaction, I went online to find out what I could in order to try to make the most of what I felt would be a bad situation with my husband. I read on your Website and elsewhere that if the bargaining positions were unequal, mediation would not be a good thing. I called my lawyer who told me that I was “reading too much” and to “relax.” For a week before the mediation, I was beside myself and unable to sleep, but was afraid to call my lawyer at the risk of being called a “worrywart”.

When we entered the mediator’s office, he introduced himself and told us about himself and the purpose of mediation. He seemed nice enough, and I felt better. He assured us he was independent and that everything we discussed would be confidential. He explained that his role as a mediator was to help us open lines of communication that might lead to a settlement.
He then called on each lawyer to make an opening statement of position before we “caucused.” My lawyer explained my concern about the process and made no opening statement; however, my husband’s lawyer jumped up and began ranting about how bad a wife I was. I began to cry, and my lawyer finally asked the mediator to take charge, but my husband’s lawyer continued. I was so upset that I left the room and refused to participate further. My lawyer told me that I was too thin-skinned and did not give the process a chance. He has now filed a motion to be relieved as my lawyer. Was I wrong? Is he wrong? What can I do?

Answer: An opening statement in mediation is supposed to be a short statement of the position of each party to the dispute by his and her representatives, not a shouting match or an opportunity to verbally abuse an adversary. In fact, verbal abuse in the mediation process should not be tolerated, especially where one of the parties has an inferior bargaining position as you described. Nothing will drive parties farther from dispute resolution than an aggressive, demeaning opening statement.

Assuming the facts as you describe are accurate, the mediator should have taken charge of the situation, stopped the harassment, and, if not satisfied that the process had not been damaged, terminated the mediation. We also believe your lawyer should have objected to continuation of the mediation based on your concerns or, at a minimum, should have imparted your concerns to the mediator, who could then be in a position to ensure you were protected.

You hired a lawyer to protect you. He didn’t. If he had not quit, you should have fired him.