Common Questions From Attorneys about Mediation

by Diane Neumann


Divorce Mediation is on the rise- statistics are not that one to two in ten divorce cases are mediated. Increasingly, divorcing couples are requesting mediation instead of litigation. Here are answers you need to assist your clients in mediation, or to refer clients to a mediator:

1. WHY DO ATTORNEYS RECOMMEND MEDIATION TO CLIENTS?

Many attorneys are sensitive to the effects of litigation on family structures, and provide or refer clients to mediation because they want to assist clients with reaching a fair resolution at minimal cost. There are many reasons clients benefit from mediating the dissolution of their marital partner relationship. Mediation is a process which offers parties an opportunity to discuss and resolve their fears, needs and hopes and to tailor solutions which match individual situations. Mediation encourages parties to design solutions and make decisions which support rather than erode their ability to resolve relationship difficulties. This is particularly important when parties share children, as well as in financial areas, such as owning a business or property jointly. Mediation provides closure and emotional healing while litigation may foster divisive and non-cooperative results.

Mediation is not a quick fix. It is a complex information gathering process which takes time. Neither is it divorced from the legal process; couples may have their agreements reviewed by independent attorneys for parties who desire such review, and other clients may seek attorney consultation.

Mediation also provides parties the opportunity to express feelings, including anger, and to resolve their emotional issues together. As a process, it should provide the freedom for parties to vent safely and productively and it should foster the ability to resolve or manage crises or problems with less difficulty.

2. WHAT ARE THE BENEFITS OF MEDIATION?

Mediation can help the parties reduce hostility and channel emotions into creating cooperative solutions to disputes which arise routinely in relationship dissolution. Mediation provides an opportunity for the parties to negotiate and make decisions together and for themselves which each finds acceptable. It reinforces the fact that relationship dissolution is not win-lose, that it is characterized by compromise – even in a courtroom – and the ability to design compromise is best left in the hands of the people most intimately involved.

Mediation fosters communication, resolves or reframes emotional tension, and builds on-going dispute resolution skills, so the parties themselves clarify and decide the issues important to them. Even when the parties cannot resolve all issues, they can identify issues, if any, which must be tried or decided by a judge. Narrow issues so identified can be submitted at pre-trial, thus reducing the cost and acrimony of full-scale trial.

Mediation is a process which can be expected to organize information important to the parties, and to develop their awareness and understanding of relevant legal, financial and psychological information necessary to designing good property division and parenting plans.

3. WHAT QUALIFICATIONS ARE IMPORTANT IN A GOOD MEDIATOR?

Clients should choose a mediator carefully. The success of the mediation depends on choosing an experienced and knowledgeable professional.

Before hiring a mediator, clients should know:

  • What issues does the mediator work with?

These are the typical issues mediators assist with:

Divorce and dissolution law (including paternity and non-traditional families), parenting plans, child support, alimony, property division, tax consequences, retirement pension plans, QDRO’S, medical and life insurance, educational costs, effect of agreements, psychological data concerning divorce conflict effects on children, collateral and agency contact, and court timelines.

  • What percentage of the practice is devoted to mediation? (Should be 100%).
  • Is the mediator certified, and if so, by what organizations?
  • Is the mediator affiliated with a professional mediation organization? What standards of practice are imposed?
  • What training has the mediator had?
  • How many mediations has she or he done?
  • What can the clients expect from the mediator with regard to confidentiality?
  • Is the mediation contract clear and fair?
  • Will the mediator draft the final document?
  • Parties should feel free to ask questions of the mediator.

4. WHEN SHOULD MEDIATION BEGIN?

Mediation should begin as early as possible. Mounting data in the field finds that the common sense idea that the earlier the intervention, the greater the chance to resolve issues amicably. Starting mediation even prior to separation can help reduce acrimony and build consistent parenting and support. Creating opportunities to vent while separating emotions from decisions, and creating opportunities to listen while structuring the development of mutually acceptable solutions, can help the parties feel more in control of their dissolution process.

5. HOW LONG DOES MEDIATION TAKE?

Mediation takes less time than either attorney representation or litigation, unless the parties are extremely volatile. Parties should schedule appointments to accommodate their emotional and financial needs.

The adversarial process can extend dissolution indefinitely (a recent American BarJournal article relates one man’s story – he is still not divorced after twelve years of divorce litigation. The article didn’t mention his divorce fees!

Factors which will influence length of mediation and ability to settle include:

  • One spouse refuses to accept the end of the marriage.
  • One or both is passive
  • One or both is extremely hostile.
  • One or both has serious substance abuse problems.

These factors influence – but do not determine – whether parties can successfully mediate. Progress can occur when parties are willing to talk to each other with the assistance of a skillful mediator.

6. HOW MUCH DOES MEDIATION COST?

As with other professions, mediator rates vary, however, mediation is efficient and the final cost for both parties is almost always significantly less – very much less – than a divorce using separate divorce attorneys. Some people in mediation have their agreement reviewed by an attorney, but this should be a substance amount, as long as the mediator is doing a good job

7. ARE THERE ANY RISKS IN MEDIATION AND CAN CLIENTS AVOID THEM?

An incompetent professional does not produce a successful result. In mediation, the risk is that an incompetent mediator will allow the less financially sophisticated spouse to agree to an unfair settlement. This is a problem with every profession, as each as has incompetent professionals.

A. A mediator is not skilled if she or he:

    • Acts solely as a referee for the divorcing couple.
    • Takes the side of one party against the other.
    • Is not knowledgeable about law, custody and the financial areas.

B. A skilled mediator can be expected to:

    • Freely disclose his or her training, certification, affiliation, background, fees, and type of services provided.
    • Provide a contract which defines the fee arrangement, cancellation policy and confidentiality.
    • Help the parties make informed decisions, which the parties agree are fair and reasonable, given their particular circumstances.
    • Remain impartial, a fundamental skill required for all good mediators.
    • If clients request, refer them to professional.
    • Require full disclosure of financial assets, income, debt and other areas
    • Provide accurate, up-to-date information about relevant legal, financial and parenting data.
    • Competently manage emotional and financial issues incident to dissolution.

8. ARE SOME CASES UNSUITED TO MEDIATION?

Yes. Another way to ask this question is “what situations are more appropriate for litigation than mediation?” These situations involve violence or where the potential for continuing abuse is high, and will preclude the victim’s ability to negotiate a fair agreement.

9. DO CLIENTS WHO MEDIATE STILL NEED ATTORNEYS?

This is a “some do” answer. While mediators rarely can require a party to consult with an attorney, most recommend that each client consult with an attorney at some point during the mediation and prior to signing a mediated agreement.

Potential for difficulty is minimized when clients seek legal advice during the process. Attorneys are necessary to provide on-going advice in complicated legal situations rather than waiting until the end of the mediation. Consultation with attorneys can dispel the myths and erroneous information obtained from well-meaning friends or television, and can help clients “reality test” their expectations and the long-term consequences of various choices and obviously, such consultation is enhanced when attorneys understand and support the mediation process. Often, clients need related legal work, such as transfer of real estate or business interests or execution of new wills.

Attorneys may participate in sessions, but it is usual. One of the strengths of mediation is that parties make their own decisions. Attorneys can and should give advice, but each person needs to take responsibility for their decisions.

10. DO CLIENTS GET BETTER RESULTS FROM MEDIATION THAN LITIGATION?

The short answer is “YES”, because the reality of a divorce trial is that litigant’s walkout of the courtroom feeling as they have been run over by a truck

Mediation helps the parties make good decisions – better decisions than those imposed by a judge with little time to understand the specifics of the divorcing couple in front of them. The end of a significant relationship involves emotional turmoil, which may be difficult for parties to manage without professional assistance. Additionally, clients do not have the knowledge they need to make informed decisions. A spouse may think a pension, which is in their spouse’s name, is not marital property, or may agree to waive his or her rights without knowing the value of an asset or the legal status of an issue. One of the couple may make a list for both of them, but find on review they have left out matters considered vital under law. It is safe to suggest that do-it-yourself agreements are less likely to comport with legal expectations.

11. WHO DOES WELL IN MEDIATION?

People who have – or can develop – the following characteristics will mediate successfully:

Both parties agree to mediate voluntarily.

Each has been an emotionally healthy partner for most of the relationship and is aware of and can express feelings.

Each can separate anger from issues and can compromise.

  • They can be angry or hurt without insisting on revenge.
  • They want to make decisions themselves.
  • Each is willing to learn new information.
  • They are willing to let go of the old relationship.
  • Each has some respect for the other partner.
  • They want what is best for their children rather than best for themselves as people or parents.

It is essentially the attitude of each partner which determines the success of the mediation process. Parties come to mediation with different levels of awareness, readiness, and ability to negotiate. While the mediator does not make them equal, he or she does create an environment where their differences do not interfere with the development of good conflict resolution skills.

A skilled mediator is an asset, and clients who want to take an active role in creating good results obtain the best results.

The attitude of the legal profession, particularly family law attorneys, will have a major influence on the growth and regulation of mediation. Most attorneys recognize that the litigation process can be unhelpful, if not downright destructive, for families in the crisis of divorce and dissolution. Mediation provides a way to assist divorcing couples to reach fair settlement and to end marital relationships fairly and respectfully.


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