What is mediation? How does it work?Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn’t make any decisions for them.
What are the benefits of mediation?Many factors suggest that mediation can often be the smarter choice for both you and your client. Remind them that mediating a dispute has many benefits over litigating. Distinct from litigation, mediation is for the most part a healthier and less stressful course of action not only for the parties involved but for family and friends as well.Mediation has a positive effect on children. Mediation is generally less stressful than litigation, allowing for a more peaceful home during the conflict. In addition, children benefit from seeing their parents cooperating, even when they disagree with each other. The cooperation of the parents often leads to more joint custody being awarded in mediation, benefiting the children with a continued future with both parents.Mediation is cost-efficient. Mediation will almost always be less expensive than litigation. While both mediation and litigation can involve experts, such as accountants and real estate appraisers, there is only one mediator; as opposed to two attorneys or more when the parties appear in court. Remember that mediation is concerned with both parties working together, and doing so can dramatically decrease the billable time owed. The cost of divorce mediation is generally 40% – 60% lower than divorce litigation.
What is my role as a client in mediation?Clients are responsible for raising issues that may need to be addressed; prioritizing the agenda items; respecting the mediation process; making proposals; making decisions.
How do we know if mediation is the right divorce process for our situation?If you and your spouse have accepted (however reluctantly) the reality of your separation being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached the emotional point in divorce when mediation can be productive. This doesn’t mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don’t get back together.Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps.Do you have a high level of animosity toward your spouse that could undermine mediation? If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you go ahead with mediation. Another option is to find a mediator who will conduct some or all of the mediation in separate meetings so that you don’t have to deal directly with your spouse.It’s natural, at times, to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But, if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement that your spouse considers acceptable.Also, if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state’s laws allow you to prove fault as a ground for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.Financial issues are a big part of any divorce. In order to negotiate a good financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know to start with and the more comfortable you are talking about financial matters, the more confident you will be going into mediation and the fewer surprises you’ll encounter. If you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.If your spouse has lied to you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may understandably be afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn’t necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial adviser during mediation to develop settlement options that don’t rely on your spouse to provide information in the future.In mediation, you will speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse’s presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you’ll need a minimum level of self-confidence just to start the process.If physical violence is part of the relationship with your spouse, it’s very unlikely that you will be able to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation. In fact, many mediators will screen out couples that have a history of physical abuse, as it’s virtually impossible for a victim to negotiate with an abuser and obtain a fair settlement; one that is free of duress or intimidation.An alcohol or drug problem can impair someone’s ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation.However, if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree on how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, you may be required by the laws of your state to attend mediation in a court-sponsored program before a judge will even hear your case.
How much does mediation typically cost? How does the mediator charge for services?Most mediations involve an hourly or per-session fee, except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at a reduced cost or even for free. The number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will usually be much less costly than adversarial litigation. A divorce mediator in private practice might charge anywhere from $150 to several hundred dollars an hour, depending on where the mediator practices.
Is it possible for a mediator to be completely neutral, or will he or she take sides?Neutrality is sometimes a difficult thing to achieve. Most people, despite their best intentions, have biases and preconceived notions that impact their judgments. These biases can pertain to everything from race to gender to economic status. In some cases, though, it is indeed possible for people to significantly minimize their own internal biases and truly see things objectively. This is the case for those who work as mediators. A divorce mediator is an individual who helps couples negotiate their divorce settlement amicably, out of court. Mediators offer assistance on a variety of issues (all of them, in fact, in the context of a divorce, including issues such as spousal support, division of assets, and child custody. Typically, working with a mediator is less costly and less time-consuming than settling a divorce using the adversarial, judicial process.To ensure neutrality, mediators take several precautions. First, they exercise strict confidentiality in all dealings with a couple. All issues discussed during mediation remain fully confidential. The mediator will not testify in court or otherwise divulge anything that has occurred during mediation. Neutrality is also ensured by the fact that the mediator will not divulge anything that either spouse says to him to the other without written permission. This precaution allows mediators to hear each side without being influenced by the other spouse. The mediator is neither an advocate nor a representative for either side. Rather, the mediator acts as a third party who works to successfully overcome any biases and create a settlement that is in the best interest of everyone. Mediators are trained professionals and are used to seeing things objectively, without any “spin” or “filter” that one spouse may want to put on the facts. This training and experience allow them to see the facts objectively and then present and explain these facts, in the context of the law, in a neutral yet caring manner so as to allow the parties to come to an agreement, rather than simply “agreeing to disagree.”
If a divorce involves complex issues, can you still use a mediator?In the mediation process, the parties can agree to use neutral experts to help them to simplify the issues. For example, the parties often agree to use one forensic accountant (to value the business, determine the cash-flow analysis, and help with the issues of stock options, 401Ks, and business valuation), appraisers, actuaries, business valuators, etc. These experts provide a report based on fully disclosed information. The mediator requires complete disclosure without formal discovery. The issues can be presented for the parties to clarify and ask questions (with or without independent counsel present) so that the complex issues are made much more understandable in a less formal setting where the rules of evidence are relaxed, the strict judicial procedures are not required, and there are fewer time constraints.Litigation often makes complex issues even more complicated in that the subpoenas that attorneys issue in litigation use are far broader than what would actually be necessary for use in an agreed-upon expert setting. Formal Discovery often requires more information than actually is needed. The costs increase tremendously, and often the vast information may make it easy to miss the heart of the matter when reviewing numerous irrelevant documents. The process can be streamlined when the neutral expert looks through documents and determines what is necessary for him or her to review rather than just subpoenaing every paper possible.When the parties agree in mediation to use a neutral expert, there is less confusion because there are no conflicting exaggerations from opposing experts. Instead, the agreed-upon expert, knowing that he or she is hired by both parties, has a duty to be as objective as possible. Just as in any other case, the mediator, attorneys, and clients will do what they can to get the most qualified expert to help the parties reach a truly satisfying agreement. Clients using opposing reports and fighting the information battle often “can’t see the forest for the trees” to get to the main issues of valuation and fair distribution of assets.The more complex the issues, the more likely they will be resolved quickly, cooperatively, and effectively using the problem-solving approach in the mediation process.
Can I give the mediator confidential information: something that I don’t want him/her to share with my spouse because it could derail the process?In preparing for mediation, attorneys explain to clients that mediation is confidential. “These are settlement discussions and cannot be disclosed in court,” attorneys tell their clients. “You can feel free to talk to the mediator. She won’t disclose it to the other side if you tell her the information is confidential.” In the opening session of the mediation conference, the mediator explains that the discussions are confidential and privileged. All participants sign an Agreement to Mediate stating they understand the mediation process, the mediator’s role, and the confidentiality of the discussions. Mediation proceeds are based on an understanding that the mediation discussions are confidential.
How can I help my lawyer to work with my mediator?If you do decide to use a lawyer for your mediation process, consider the following:
- Find an attorney who supports mediation. Many lawyers prefer to act as zealous advocates for their clients, as this is how they are trained. This can be detrimental to a mediation process that seeks to find a middle-ground agreement. Look for a mediation lawyer who can advise you on your legal issue and is familiar with mediation.
- Decide whether you want legal coaching throughout the mediation or if your interests only call for an initial consultation.
- Make it clear to your lawyer that you want her to understand and support mediation. She should be open to negotiation and compromise in reaching settlements and not focused on how a judge or jury may rule.
- Ask that your mediation lawyer be available to review all written agreements created during mediation before you sign them.
- Be cautious of lawyers who have negative attitudes towards mediation.
- Find out if the lawyer has ever had clients in mediation before.
- Ask what the mediation lawyer thought about the process. Was it successful for the client?
- Pay close attention to the way in which the lawyer speaks about prior mediation experiences to get a feel for whether she supports and respects the process or not.
- Find out if the lawyer has been trained in mediation. If the lawyer has received training on how to be a mediator or on how to represent clients in mediation, then that lawyer is probably supportive of mediation. Of the two types of training, a lawyer who has received specialized training on how to represent clients through mediation is probably better equipped to represent you through your mediation.
- Be sure you understand the mediation lawyer’s fees BEFORE you decide to hire the lawyer. Don’t expect to receive a discounted mediation rate, as most lawyers still charge their usual hourly rate.
- Be clear in the beginning about what role your lawyer will take and what expectations your lawyer has of you.
Do mediators provide legal advice? If we hire a mediator, do we also need lawyers?The mediator does not represent either party and cannot provide legal advice on divorce. The mediator may provide an explanation of the legal system and the law, but is prohibited from providing actual legal advice. Typically, most mediation situations do not require the parties to obtain their own legal counsel. However, there are certain situations, when it is a good idea to seek a mediation lawyer–a lawyer who understands your legal issue and is familiar with the mediation process–to advise you regarding your mediation.
Are mediators governed by rules, a code of ethics, or an organization?Yes, and they include:
- Model Standard of Practice for Family and Divorce Mediation.
- ABA (American Bar Association)
- APFM (Academy of Professional Family Mediators)
- ACR(Association for Conflict Resolution)
- AFCC (Association of Family & Conciliation Courts)