I typically recommend mediation to most of my clients when there are issues which cannot be resolved by agreement. Mediation is usually a very successful process and in over 90% of the mediations which I have either attended as counsel with clients or attend as the mediator all of the outstanding issues have been resolved in one or two sessions.
In some very contentious cases there is a process whereby the mediator can be given the ability to choose the “last best offer.” In order to do this the mediator must be trained as an arbitrator. The mediation proceeds as it normally would but at the end of the day if the parties have not resolved all of their issues they will each make one final offer and the mediator will decide which offer will be binding on the parties. This can be extremely useful as it saves wasting the legal fees which the parties have invested in the mediation and provides a resolution so that the parties can move forward. Often the mere threat of knowing that the mediator can choose one of the offers will force the spouses to take reasonable positions and the mediator does not need to make a choice as the spouses will resolve the issues themselves.
