Choosing a Mediator
How do we choose a mediator?
A mediator should have relevant experience and appropriate training for your particular situation. You should be comfortable with the mediator and you should feel that the mediator will be neutral, open, informative, and capable of helping you make your own decisions.
- Is she a good listener?
- Does he easily convey his ideas to you?
- Does she keep the session focused on the task at hand?
- Does she seem to be objective?
- Does he jump to conclusions?
Any competent divorce mediator should be able to answer questions about your state's legal requirements, especially about property distribution, custody, and support. We suggest that you interview more than one mediator in order to get an idea how different mediators work and to find a person you feel comfortable working with. Feeling good about your choice is important so that you will have confidence in your mediator and won't become discouraged if you hit some rough spots in the negotiations. Some of the key questions you'll want to ask each mediator you meet with are:
- How much training do you have as a mediator? In addition to graduate degrees in the law or the mental health professions, your mediator should have a minimum of 60 hours of mediation training. The more the better.
- How much experience do you have in mediating family cases? There are many kinds of mediators. A mediator who specializes in international mediation or labor disputes is unlikely to have sufficient divorce mediation experience.
- What training do you have that's related to our particular situation? Anticipate what you will especially need from your mediator. Is your situation financially very complex? Emotionally intense? In other words, does the mediator have relevant financial, legal, Or family psychology training?
- How long have you practiced as a mediator? This will vary since mediation is new in some states. Your mediator should be an experienced person. If mediation is new in your area, the mediator should be experienced in the law or in a mental health profession in addition to having completed mediation training.
- How many cases do you mediate in an average year? Again, this will vary with the use of voluntary and mandated mediation in your area. We would like to see the mediator have a minimum of 15 cases a year. In states with court-mandated mediation, we feel the number should be closer to 25 cases.
- What is your fee? What does it include? (See Question 12 in this chapter.)
- Who drafts the separation agreement and files the divorce papers?
Where can we get a referral to a qualified mediator?
You can ask family and friends if they know of a divorce lawyer that practices mediation. You can also seek a referral through the Academy of Family Mediators. Other referral sources are state and local mediation organizations, the American Arbitration Association, the American Bar Association, the Society of Professionals in Dispute Resolution, and, sometimes, local bar associations.
How can I be sure the mediator won't side with my spouse?
Mediators are ethically bound to be impartial, neutral, and unbiased. In 1994, a set of Model Standards of Conduct for Mediators was prepared by a joint committee of the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution. The Academy of Family Mediators has prepared similar standards. Copies are available from the organizations. Both sets of standards include ethical requirements that the mediator be impartial and neutral, disclose any conflicts of interest, clearly explain fees, and maintain confidentiality. During your consultations with different mediators, think about whether that person seems fair. Ask yourself: Does the mediator encourage each of us to discuss our concerns? Is he listening to both of us? Does she respond similarly to my concerns and those of my spouse? Does he seem to be making every effort to be unbiased?
Remember, the mediator's role is to facilitate each of you in making decisions by creating a safe, informative atmosphere in which both you and your spouse can negotiate. If you have any concerns or misgivings, address them openly and see if you can't clear the air. Your mediator should respond positively to your expression of discomfort and should work with you to increase your confidence in the process.
How are mediation fees set?
Generally, fees are set on an hourly basis and vary according to location. In private practice, in addition to charges for sessions with the couple, additional charges usually include phone calls with clients that last more than ten minutes, preapproved consultations with experts, and time for review and preparation of documents. Recently, the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution formalized what had been general practice for most mediators and, in conformance with the Standards of Practice of the Academy of Family Mediators, mandated that the standards for fees should be fair and reasonable and should be fully disclosed. We recommend that the fees your mediator charges be fully disclosed in writing. According to the Standards, contingency fees and commissions or rebates for referrals are prohibited.
Who pays for mediation?
While you can negotiate with each other about who will actually pay, the mediator will usually ask that the two of you sign an agreement so that you will be equally responsible for the fees. If your spouse agrees to pay for the sessions, you may want to be sure the sessions are paid in full, so you don't have to be concerned about making up the difference if your spouse fails to рау. The timing of payment will be discussed when you begin the mediation. Ordinarily, payment is expected at the end of each session, but some attorney/mediators ask for a retainer, which is a deposit in advance for a specific number of sessions.
How long does mediation take?
This depends on you and your spouse. The more decisions you have already made before coming to mediation regarding property, children, and finances, the more quickly the mediation will proceed. If you are very emotional and negative, it will take longer because you will need to spend some time expressing your feelings before you are able to focus on the practical issues. We prefer to have sessions that last no longer than one and a half hours, but some other mediators schedule longer sessions, especially when couples have traveled long distances to get to the mediator's office. Mediators can complete mediations in one session for couples with no children who have had a financial settlement in mind when they came to mediation. But other couples can take longer, especially if there are children or complicated property or financial situations. Mediators vary to some degree in the way they work, but we believe mediation should be completed in less than ten hours, usually considerably less. Couples sometimes return to mediation to renegotiate a point that arises after they've consulted with review attorneys, or even after the divorce, if circumstances change. This is fairly rare, and whatever adjustments are needed usually can be accomplished in one session. Also see Question 30: What if circumstances change after we're divorced and the separation agreement needs to be changed?
My spouse wants to continue the marriage and won't discuss separation or divorce. Can a mediator help us?
Suggest that your spouse phone the mediator, and perhaps the mediator can help him or her consider a mediation consultation so that the three of you can evaluate the situation. Your spouse may be more hurt than angry, and argumentativeness may be a way of hiding the hurt. Depending on the specific circumstances of your situation, we might proceed cautiously, evaluating each session with both of you before committing to the next. Eventually, your reluctant spouse may feel more comfortable attending mediation, knowing that the commitment is only for one session at a time. It is not unusual, through this process, for the spouse who is reluctant to end the marriage to come to terms with the separation and to participate in piecing together an agreement. In the meantime, in mediation you may be able to negotiate temporary financial arrangements so it will be easier to live separately.
It is not unusual for couples to come to one of us for mediation after living separately for some time, and we find that these mediations often go more smoothly than with newly separated couples. Our theory is that when negotiations are easier after time has passed, it is because the experience of living apart has allowed the unknown to become known.
- The emotional turmoil of Separating has subsided, and an individual identity is being established by each former partner.
- Each person is more focused on his or her individual future than on their joint past. Many financial issues have been settled by necessity.
- Couples have developed Confidence, through experience, in their Solo parenting ability.
- The remaining issues that need to be resolved in the final agreement are very clear.
Sometimes-particularly if you live separately-the passage of time facilitates negotiation because reality intervenes.
If your spouse still refuses to discuss divorce and you want to proceed immediately, you will need to retain a lawyer. Although in most no-fault states a resident spouse can file for divorce and the other spouse has no legal right to insist on staying married, in order for the court to make any financial or parental decisions, the other spouse must be properly served with legal papers. This is sometimes difficult to do, particularly if the absent spouse is not a resident of the state.