Reasons Why Threats and Ultimatums Fail in Family Law Mediation

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The Scene:  You’ve been going back and forth with your spouse over details of your divorce.  The kids; the house; the cars; and the knick knacks have been separated. Concessions and deals have been made.  You’ve given in on a lot, and you’ve won a few rounds.  There are just a few more details to iron out, but you’re both exhausted. Emotions start to take over and you begin to kick back into the same mode that precipitated the divorce in the first place.  As tensions and temperatures rise, the rational decision-making wanes.  Ultimatums and threats start to fly around the table like flies at a picnic.  Threats are the death knell to any mediation, especially if they are threats of physical violence.  Meanwhile, the mediator sits back and wonders how this couple escalated to this point and how they can re-center.

Once a threat or ultimatum is given, the recipient often gains the upper hand, the most important of which is that no documents can be signed under the threat of duress or coercion.   The mediation is over.  So, before lobbing over your “take it or leave it final offer,” in a fit of frustration, consider the following:

1. Backing your opponent into a corner leaves him/her nowhere to go, except to have a stalemate.  In mediation parlance, that only puts you exactly where you don’t want to be, namely, in a courtroom litigating the same issues.
2. Following through on your threat by disclosing some horrific truth about the other person, which disclosure is designed only to cause pain and embarrassment, you effectively lose your ability to negotiate for the things you really want in the settlement.  Once the cat is out of the bag, so to speak, there’s no more reason to be cooperative with you.
3. You lose credibility when you draw a line in the sand with your “final take-it-or-leave-it-offier”; and
4. If your opponent feels threatened or coerced, the mediation is over and you’ll be forced to litigate despite all the progress you may have already made in settlement discussions.  Everything comes off the table at that point and you start all over.

So, before you let your emotions take control during your settlement negotiations, take a pause from the discussion and think before you speak.