1. Is Mediation Right for My Case?
When parties divorce, they can proceed in three ways.
First, if they agree on everything (perhaps no children and little property), they can have an uncontested divorce.
Second, they can resolve the differences through litigation or mediation if they have differences on critical issues like custody or support. Litigation is the traditional method where each party has an attorney and uses the adversarial process to work out an agreement, either by settlement or trial. Mediation involves only one lawyer, a mediator, who will help the parties reach an agreement on their own without other attorneys and will complete the settlement documents that the parties will eventually submit to the court as part of their judgment to dissolve their marriage.
Mediation certainly has its advantages.
First, it takes much less time than the usual court process. Traditional litigation can take between six months and eighteen months, depending upon the complexity of the case and the degree of conflict. Mediation usually takes less than three months, depending upon the availability of the mediator.
Second, mediation costs less than traditional litigation, as the parties need only hire one attorney.
Third, mediation tends to keep the conflict low. Because mediation is premised on the ability of the parties to communicate and collaborate on a mutually acceptable outcome, mediation tends to proceed with less hostility.
Fourth, mediation can keep the children free from the process, not only from direct participation but also from seeing their parents openly fight or having records to read in the future detailing all of their dirty laundry.
But mediation is not for everyone. Mediation only works when the parties truly have the ability to work together, and many couples going through a divorce can barely stand to be in the same room with each other, let alone work rationally through property division or a custody schedule. Also, mediation works best when the issues are manageable. Parties with significant domestic violence or substance abuse allegations would not be good candidates for mediation because they would require outside counsel – not just an attorney but guardian ad litem for the children. While it is true these parties could work through these issues together, the risk of not having sufficient information or protections put in place prior to mediation may be too high.
Mediation is often highlighted for creative problem-solving. Increasingly, courts and parties to a divorce elect to go to mediation to resolve their issues rather than traditional litigation. In mediation, the parties agree to work with one attorney, the mediator, who will guide them through the legal issues to resolve and help them reach a final agreement. Mediation relieves parties of having to each get an attorney and opt out of the traditional litigation model. For couples who believe they can cooperate amicably, mediation offers a less stressful and less costly method of divorce.
If you think mediation might be a viable option for you, before you and your spouse both get attorneys, meet with a mediator and see if that scenario fits your personal circumstances.
2. How do I Find the Right Mediator?
But of course, the overriding question the parties will have remains how to find the “right” mediator. What makes a mediator “right” for a couple? In a word: trust.
Mediation rests on a singular foundation – belief in the fairness of the process. The mediator will remain neutral, transparent, and helpful. But before selecting a mediator, couples interviewing a mediator should first assess whether they feel they can trust the mediator.
Trust in this sense has both an objective and subjective component. Objectively, the mediator must have the right approach that will work for the couple. Not all mediators have the same approach. For example, some mediators ask more of the couple in terms of workload, disclosure, and sessions; others might seem more heavy-handed in an attempt to remove emotion and stay on a rational approach to the issues. Every couple must determine if the mediator’s process will work for them, meaning it would be compatible given their goals, number of issues, distance apart in resolution, commitment, and personality. If the couple makes the wrong choice, the mediation could ultimately fail and the parties would have to proceed in the traditional litigation model, defeating the purpose of mediation.
Subjectively, the couple must make a “gut” judgment about the mediator. Does this person seem honest and forthright? Does this person communicate in a way I understand and appreciate? Do I sense this person will be fair and not favor my spouse? Does this person understand my financial situation and parenting goals? Ultimately, do I feel I can work with this person toward a good outcome? Answering these questions has less to do with the objective markers of the process and more to do with how we relate to people. In other words, trust.
Because mediation depends on one person, the mediator, to work, the participants must buy in fully or the mediation will not succeed. And to get a complete buy-in, the participants must trust the mediator to work in both parties’ best interests, to gain the trust of each spouse.
One mediator is not for everyone. Some will feel comfortable with a mediator who is of the same gender, temperament, or background; others will have different markers of comfort. That is why interviewing mediators is so essential – indeed, it is probably the most important part of the mediation process.
Mediation is a good option for those willing to do the hard work of sorting through issues of property, support, and custody in the right environment with the right facilitator. So, if you cannot trust the mediator, you have likely doomed yourself to an unsatisfactory outcome. On the other hand, if you do trust the mediator, you have a good chance of a successful agreement.