Divorce Mediators

What is divorce mediation?
Divorce has traditionally been handled with an adversarial approach. Each party hires a lawyer, and those lawyers go to work “warring” with one another to win the best outcome for their client. The details of the settlement are hashed out in an angry and expensive court battle. In the end, one person may “win” the desired settlement, but in reality, both spouses, and perhaps even the children, have lost a great deal financially and emotionally.

Divorce mediation is an alternative to the adversarial approach. It is a process by which the spouses negotiate a settlement with the assistance of a neutral third party. This neutral person, the mediator, will work with both of you without representing one spouse or another. Whereas in a courtroom, the judge has the ultimate authority to decide, a mediator will not make decisions for you. You and your spouse will communicate directly with one another and negotiate a settlement that suits both your needs. Mediation allows you to remain in control of your divorce, and it can save you money by eliminating lawyers’ fees and trial costs. It is usually quicker than other methods of divorce (court trials or negotiation through lawyers.) You can choose to mediate all aspects of your divorce or to only mediate certain issues, leaving others to be resolved by lawyers or the court. And mediation is voluntary and legally non-binding so if mediation is not successful, you can still take your case to court.

Is mediation right for you?
Mediation is a good approach for some couples but may not be right for everyone. There are some factors you should consider before making a decision about whether to mediate. In general, mediation may be a good option for you if the following conditions apply:

• Your divorce is a mutual decision that you’ve both accepted.
• Neither spouse is insistent upon a reconciliation.
• Both spouses can understand the basics of the financial situation.
• There are no issues of alcohol abuse, drug addiction, or domestic violence in your relationship.
• Both spouses are good parents.
• You and your spouse are generally honest with one another.
• There is no major power imbalance in your relationship and one spouse is not likely to dominate or overwhelm the other in negotiations.
• You and your spouse are able to communicate.

How do you find a mediator?
Mediators are professionals with a variety of backgrounds: some have experience in finance and accounting, family law, or mental health. Some are lawyers as well as mediators. Before you look for a mediator you should decide whether it’s important to you to have a lawyer-mediator. The advantage would be that your mediator will be very familiar with the legal rules that apply to your case and will be experienced in writing up agreements that stand up in court. However, a lawyer mediator may be more expensive than a non-lawyer and may be more focused on the legal rules than in helping you reach creative, alternative solutions.

To find a good mediator, you can ask for referrals from friends or family members or from professionals such as lawyers. The mediator should be someone who does not have a prior or existing relationship with either you or your spouse. Be sure to find someone who has experience with cases like yours and whose experience fits your particular needs.

Do you need a lawyer, too?
If you decide to mediate, you should still consult a lawyer at least once during the process. Your lawyer will review the agreement, inform you of the laws pertaining to your case, and make sure you are fully informed about your legal rights before you sign the final contract.

You should find someone willing to meet with you on a consultation basis at an hourly rate-you should not expect to pay a retainer for these consultations because you do not need to “retain” the lawyer’s services for the duration of the divorce. Find a lawyer who is familiar with collaborative divorce and has worked with mediation cases before.

How should you propose mediation to your spouse?
If you are interested in mediation and want to propose it to your spouse, you might want to give some thought to your timing and approach. In the initial phase after the separation, if your spouse is in shock or denial, he or she may not be ready to think about the settlement negotiations or may not be emotionally able to communicate effectively with you. You may want to wait until your spouse has had time to accept the separation.

If you and your spouse are having trouble communicating orally, you may want to write a polite, business-like letter proposing the process. Give some information about mediation and offer brochures or other materials. Don’t threaten, become angry, or attempt to overpower your spouse into agreeing to mediate. Let your spouse know that mediation is not binding; in other words, if it’s not successful, you could always resort to the courts. Remind him/her that mediation will be les

s expensive than a court trial and will allow you both to remain in charge of your future. Keep in mind that the decision may take some time, and your spouse may want to get more information before committing. If he or she is not interested in mediation at first, this may change after he/she visits a lawyer and finds out more about the cost and limitations of a legal battle.

What can you expect from the mediation process?
Mediation takes place in a series of stages. Although you can expect to cover each of these stages, the order may vary, and it may be a cyclical process. For example, although information-gathering will probably be an early step in your mediation process, you may return to this stage several times during the process as the need arises for more information.

Below is an outline of the mediation process, adapted from Using Divorce Mediation: Save Money and Your Sanity, by Katherine E. Stoner:

Introduction

To begin with, you and your spouse can expect to meet jointly or separately with the mediator to discuss the details of your situation to review the ground rules for mediation, and address your questions. Once you have gone over the basics and decided to proceed, the mediator will draw up an agreement. This agreement will spell out the fees, billing process, the ground rules and the plan of action you have decided upon. It should also include a guarantee of confidentiality.

In your first session with a mediator, you should ask similar questions to those you would ask when interviewing potential lawyers (See Divorce Lawyers.)

In addition to some of those questions, you might also ask:

• What is your mediating style? How much control do you intend to have over the discussion and the process?
• How important is it to you that our decisions be based on the legal rules?
• Will you suggest settlements and solutions to us?
• Would you support our use of legal advisors in addition to mediation?
• Do you work in joint sessions, individual sessions, or both?

Information-Gathering

Your next task will be to gather information relevant to your divorce. You will be asked to gather documents regarding your property, investments, bank accounts and other assets, your debts, credits cards, and loans, insurance, and your taxes.

While you and your spouse will do some of the information gathering by bringing the relevant documents, the mediator will provide information about the legal rules that apply to your case.

Negotiation and Problem-Solving

The real work of mediation is the negotiation and problem-solving that you and your spouse will do in order to arrive at a settlement. To begin with, the mediator will probably help you to identify your interests and needs: What are you most concerned about? What do you hope to obtain through the settlement, and why?

The mediator will help you to find places where your needs and concerns overlap with those of your spouse, and then you will work to find solutions that address those mutual concerns while also meeting your different needs. For any given problem (for example, a disagreement about whether spousal support should be paid,) the mediator will ask you to list every possible solution you could adopt. You will generate most of the options, but the mediator may add some suggestions to the list. Once you have generated a list of possible solutions, you will eliminate the ones that seem least acceptable, and then you will discuss the remaining options. You will identify trade-offs that will work for both of you. This discussion and negotiation will take time so you should expect that the problem-solving stage will take place over a series of meetings.

Concluding

When you and your spouse have negotiated the details of your settlement and arrived at a tentative agreement, the mediator will write up the contract for you. At this time you and your spouse should consult individually with your own lawyers. Your lawyers may suggest a few changes, and you will probably revise some details of the settlement. Once the agreement is final, you will sign it and submit it to the court as an uncontested divorce.

What pitfalls or problems might you encounter?
Many people who elect to do mediation end up very satisfied with the process. But mediation is not without pitfalls. Below are some common problems that arise in mediation and suggestions for dealing with them.

Most people, even those who are committed to remaining on good terms after the divorce, experience tension, anger, and conflict during mediation. Although mediation is not therapy and is not intended to help people work through their emotions, there may still be occasional displays of anger or emotional outbursts. If you find that you cannot control your emotions during mediation, you may want to seek counseling to help you deal with your feelings. Try to establish ground rules for mediation that will help you keep your behavior in check. If your spouse is the one who is acting out, try not to contribute to this behavior by responding in kind or escalating the emotions. If mediation reaches a standoff or you and your spouse seem unable to communicate in appropriate ways, you may have to evaluate the process. You might need to talk about the situation with the mediator, re-establish ground rules, take a break from mediation until emotions have cooled, or even re-evaluate your decision to mediate.

During the mediation process you can expect to encounter some delays. This is normal. Some delays are a result of a need for more information or a need for more time to accept compromise. Mediation is a process spanning weeks or months, so don’t be discouraged if each issue can’t be resolved within one session. If negotiations seem to be at an impasse, and you and your spouse cannot seem to work through the disagreements, you may need to consider making a change. You might try a different mediator (although you should not do this lightly,) take a break from mediation, hire a lawyer to negotiate for you, or go to an arbitrator. Like the mediator, the arbitrator is a neutral third-party, but he or she resolves the issue by making a legally-binding decision.

Mediation can be a very satisfactory way to resolve disputes and negotiate your settlement. But if your attempts to mediate are not successful, it is not too late to seek a lawyer’s help in negotiating and, if necessary, to go to court. Even if your attempt at mediation is not completely successful, you may have arrived at a partial settlement agreement, leaving fewer issues to be decided in court. And, if you can stick it out and overcome the pitfalls of mediation, you and your spouse may find that you have successfully taken control of your divorce, arrived at solutions that meet both of your needs, and avoided the expense, hassle, and emotional turmoil of a long, drawn-out court battle.