I recently looked at the old copies of our newsletter called “The Divorce Mediator.” In the June 2003 copy which was our 11th newsletter, we did an article about Divorce Assumptions and Myths. As I am always thinking about potential blogs and programs for Arizona ACR, I thought this would be a good topic to identify mediation myths. As usual I googled “mediation myths.” I was surprised as usual to find there were lots of hits. I am always reminded of Sherlock Holmes saying in “A Study in Scarlet, “There is nothing new under the sun. It has all been done before.” As usual Sherlock is correct.
Our list for Connecticut law of divorce myths was:
1. The husband must pay the wife a year of alimony for every two years of marriage.
2. The wife’s alimony terminates when she remarries.
3. The mother always gets physical custody of the children.
4. Assets are equally divided and each person keeps premarital assets.
5. The person who pays child support gets the tax exemption and credit.
6. Property in an individual’s name is not marital property.
Steven H. Kruis in an article on the National Institute for Advanced Conflict Resolution at
http://www.niacr.org/papers/article3.htm listed the following mediation myths.
Myth No. 1: All Mediations are the same — One Size Fits All.
Myth No. 2: Certain Types of Cases Cannot Be Mediated.
Myth No. 3: Ex Parte Communication before the Mediation Is Improper.
Myth No. 4: When the Case Has Not Settled at the Conclusion of the Mediation Session, the Parties Proceed to Litigation.
Fran Tetunic in an article in the Florida Bar Journal, May, 2008, Volume 82, No. 5 and cited at
http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Articles/E0C6EB07D4D91DA285257435005E4BB9 listed the following mediation myths
1) Everything in Mediation Is Confidential.
2) Confidentiality Prevents a Lawyer-mediator from Reporting Attorney Misconduct During Mediation.
3) A Lawyer-mediator Must Advise Mediation Parties to Seek the Advice of Counsel.
4) If All Parties Waive Any Conflict of Interest Disclosed by the Mediator, the Mediator May Mediate.
5) The Mediation Is Not Over Until the Mediator Declares Impasse.
6) The Mediator Holds the Privilege to Refuse to Disclose Confidential Mediation Communications.
7) The Mediator May Predict an Outcome at Trial if Requested by All the Parties.
8) The Mediator Has the Obligation to Write the Mediated Agreement.
9) Mediators Report to the Court When Parties Fail to Mediate in Good Faith.
10) Mediator Misconduct, Like Legal Malpractice, Does Not Serve as a Basis for Setting Aside a Mediated Agreement.
Do you have any myths? There must be thousands more!
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