Working with a Mediator

Once we have chosen a mediator, how will we proceed?

Most mediators will begin in a similar fashion. You will be given a questionnaire to complete asking for information about you individually and as a couple-and about your children. The mediator will explain the mediation process, discuss confidentiality and privacy, disclose any conflicts of interest, and answer your questions. He or she will provide you with a written agreement to be signed by you and the mediator agreeing to the confidentiality of the negotiations and to fee arrangements. You may or may not begin actual negotiations at your first meeting. Couples vary considerably with regard to what they have already settled between themselves. If there is time, you may begin exploring issues that need to be resolved, or you may begin negotiations on an urgent issue such as temporary financial arrangements or temporary parenting arrangements.

I want to move out immediately because things are so difficult at home. What happens if I move out before I begin mediation?

Many spouses do this, but generally it's a mistake, particularly if there are children involved. If you have children, you need to mediate temporary terms for your parenting arrangements before you move out. If you don't, the court could interpret your leaving as indicating a disinterest in your children. This could have an impact on your future custody or visitation rights. Also, be aware that if you move out, and for some reason you aren't able to work together in mediation and you end up in court, you may have created a problem. Moving out could give your spouse grounds for divorce, such as abandonment, and that could, in some states, affect your financial settlement. Another potential problem is that, in some jurisdictions, if you change your mind after having left, you may find yourself unable to move back in. In North Carolina, for instance, if you move out without having a written agreement, the court could find that you deserted your family, and your spouse has the right to refuse to allow you to return. There are exceptions, however. We have both mediated agreements with some couples without children who have lived apart for significant periods of time. They had been able to settle most issues amicably between themselves before coming to mediation, and the time apart had helped them determine what remained to be negotiated in mediation.

Can I talk to the mediator privately? There are things I don't want to say in front of my spouse.

Meeting with the mediator privately is called a caucus; not all mediators think doing this is useful. If you think you need a caucus, ask your mediator how she'd like to handle it. Some mediators will caucus with each partner at the beginning of mediation to determine whether there are problems that make their situation inappropriate for mediation. Many mediators caucus as a way to reach a settlement on difficult issues. Some media tors refuse to caucus at all because they are concerned that one of the spouses will feel that secrets are being kept, and that the mediator has become biased. The tricky part about having a caucus is to get the rules clear before you do it. In terms of confidentiality, there are two types of caucuses, and most mediators have a preference for one or the other. In the first type, you agree that everything you say in the caucus is confidential, and only you can reveal material from the caucus in the subsequent sessions with your spouse. The mediator may encourage you to discuss a particular point she believes would be useful in the negotiations, but you have the final say. The alternative is that you agree in advance that nothing is off limits. The mediator will be discreet, but she has your permission to introduce anything from the caucus that she thinks will help the negotiations along. Many mediators will only agree to this type of caucus because it minimizes their vulnerability to manipulation by the parties. All mediators we know take phone calls from clients, and often a relatively brief phone call is an opportunity to discuss something privately with the mediator in a less formal, off-the-record manner. If the mediator sees the conversation as moving the negotiations along, she will probably permit it.

Can we be assured that our mediation is private and confidential?

When we talk about mediation, "private" and "confidential" are two separate concepts. Privacy here means nonpublic, since mediation takes place in the privacy of the mediator's office. In mediation, the two of you can keep your negotiations and the details of your personal and financial business private. This is in contrast to a court proceeding for a divorce, which takes place in public, with witnesses who may be testifying about financial, property, or personal matters. Only under very special circumstances are portions of court proceedings kept private.

Confidentiality means that the details you provide in mediation cannot be disclosed elsewhere. When you begin mediation, your mediator will ask you each to sign an agreement stating that your negotiations are confidential and that neither of you will subpoena your mediator as a witness in any future court action.

This agreement is a contract between the two of you and the mediator, but if you live in a state that does not protect the confidentiality of mediation, and you get involved in litigation, the court may order you to reveal facts that you agreed were confidential in mediation.

States differ in what aspects of mediation they protect.

  • Communications made during mediation sessions about the subject matter being discussed may be confidential, but not, for example, if the information is needed to prevent a crime.
  • Facts about the mediation, such as that you failed to appear for a mediation session, may not be confidential in court-Ordered mediation.
  • The mediation agreement itself may or may not be confidential.

In Oregon, for example, the confidentiality of communication during the mediation is protected by law, but the agreement is not considered confidential unless the parties specifically agree otherwise. Moreover, the court has an overriding interest in protecting children in all states, so information about child abuse is never confidential.

I don't want my spouse to know all about my finances. Can I avoid revealing that information in mediation?

Only if both of you disclose the necessary information will the process work. Remember, in divorce proceedings financial information is never confidential. In a litigated divorce, your attorney or the judge would order full disclosure of all financial records. In mediation, we insist on full disclosure as well, and will not proceed if either spouse is unwilling to comply. It should therefore not concern you that your spouse will have knowledge of financial information that you have disclosed in mediation.

Should we bring our child to mediation sessions?

Mediators vary in their views about whether children should come to any of the mediation sessions. In court-ordered mediation, children are usually seen separately by the mediator. In private mediation, children are sometimes involved after the settlement to help them understand and cooperate with the new parenting arrangements.

Neither of us encourages bringing children to sessions, but we do look at this question if it comes up and proceed cautiously because we don't want the child to feel pressured to choose between parents. We consider the child's age and emotional state, and sometimes we recommend a consultation with a child psychologist as the best way of attending to the child's needs.

If you both agree it would be useful to involve your child in the process of developing future plans, you need to think about these issues:

  • What impact would it have on your child to be involved in the process?
  • Would attending a session increase your child's feeling of responsibility for the divorce?
  • What could your child actually contribute to the process?
  • Is your child old enough that he or she needs to provide input for future parenting arrangements?
  • What is your motive for involving your child? Do you want your child to take sides?
  • Would either of you be tempted to manipulate your child prior to the mediation session?
  • What effect would your child's presence have on you and your spouse?

If the children are old enough and it is appropriate the child can meet with the mediator alone so they will not feel put in the middle. If the child is old enough, and the mediator is trained in this are the children can participate to some degree in planning their future, and perhaps they might be more cooperative if they have input into the visitation schedule.

Mediators sometimes suggest, however, that it might be easier for her to see their son alone so he wouldn't feel put in the middle. Parents often agreed that their children would probably find it easier to discuss his preferences and feelings in a private setting.

Another alternative might be to arrange a consultation for your child with a child psychologist or child therapist, who would then communicate your child's concerns and present an independent evaluation.

Can I bring a relative with me to the mediation sessions?

The couple getting divorce on occasion ask if a relative can accompany one or both parties to the mediation sessions. While we understand the need for support, it is important to proceed cautiously. Will it help or hurt mediation? If family interference has been a problem throughout the marriage, it may not be advisable. Are the relatives going to bring conflict into the session because of their own anger? Do they desire an outcome-revenge, for example, or humiliation of your spouse-that differs from the goals of mediation? One mediator had a consultation with an Orthodox Jewish woman whose first words were, "I want a divorce but my father is a rabbi and he would kill me." After some discussion of that dramatic statement, the mediator invited the client to bring her parents to the next session so that her parents' religious and personal viewpoints could be clearly understood. The rabbi and his wife gladly attended the next session and explained that they supported their daughter completely and felt she was entitled to the divorce based on the extensive history of problems in the marriage. The mediation proceeded smoothly after that clarification, with no additional need for family involvement.

We recommend that you meet with your mediator to explore the reasons you want someone to join you. We suggest a session or two with just you and your spouse and then a reevaluation of whether you still feel you need the additional person. Another possibility might be a single session with you, the mediator, and your family member to assure the family that the mediator is aware of their concerns.

Also see Question 11 in Chapter 2: My spouse discusses every detail of our separation with her family and close friends, and everyone gives her advice. How can we negotiate under these circumstances?

If I use a mediator, will I need to go to court?

In all states, divorce papers must be filed with the court, whether you have mediated a fault or no-fault agreement. In New York City where we practice, you do not have to appear in court if you and your spouse make a settlement out of court. Across the river in New Jersey, you must make an appearance no matter what the circumstances. In most states, if you are seeking a no-fault divorce, and your spouse is not contesting it, it is unlikely that you will need to personally appear in court. If you use fault grounds, however, it is more likely that you will need to appear. Check with your mediator for the rules in your area.