Both David and Holly work as divorce mediators. While they are both active attorneys, they don’t directly represent their clients. Instead, as a neutral third party, they help their clients reach mutually-agreed-upon settlements.
Overview of a Mediator’s Role
To understand the benefits of mediation, it is first worth considering the pitfalls of a more traditional approach. Divorce litigation has a long and ugly history. It has been the standard way of resolving divorce conflicts for generations, and the cost has always been high. Often emotionally and financially devastating, a litigated divorce ensures that no one wins. Divorcing couples hire lawyers to act as their champions and battle like knights in shining armor, but no one emerges victoriously. Instead of enjoying the satisfaction of a battle well fought, the exhausted parties typically find themselves splitting a vastly diminished prize.
Mediation removes divorce from the adversarial arena. Indeed, the court only plays a minimal role in a mediated divorce. While it’s true that divorce always requires a lawsuit (and therefore a certain degree of paperwork), in nearly every case a judge will happily endorse the settlement that you’ve generated in mediation. California courts are crowded, and judges want you to help yourself. They simply don’t have the time to become intimately familiar with every aspect of your life. No one is better qualified to make decisions about your divorce than you and your spouse.
Warren Burger, former Chief Justice of the United States Supreme Court, hailed divorce mediation as “the Brave New World of settling marital disputes.” Indeed, mediation has several distinct advantages when compared to the traditional adversarial divorce process. Not only does it typically cost much less, it also allows individuals to retain complete control over the divorce process. Instead of relying on a court (or aggressive attorneys) to make decisions that will impact them for years to come, individuals in mediation control the outcome of their own divorce proceedings. An added benefit is that a marital separation agreement that springs from mediation is more likely to be honored than an agreement that is forced upon both parties after litigation.
Simply put, a mediator’s job is to maximize a couple’s chance of reaching a satisfactory settlement. A mediator will not represent either of his or her clients. Instead, a mediator will work closely with his or her client to negotiate a legally binding divorce agreement. During mediation, a mediator will help clients articulate options that best address their respective interests. Sometimes couples need to start with a small issue to “warm up” before tackling big issues (such as child custody or spousal support), while other couples are ready to jump straight into the most contentious issue. Each mediator handles the negotiation process differently, but most mediators will help clients weed out clearly unacceptable options before focusing on promising alternatives. Clients will consider how they may compromise on certain issues in order to ensure that their interests are fully satisfied with regard to other issues.
At the conclusion of mediation, an attorney-mediator will often translate your tentative settlement into a legally binding agreement that can be filed with the court. A non-attorney mediator is not permitted to draft the marital separation agreement, and as a result, the mediator will likely enlist the services of an attorney for this task. In most instances, a mediator will require that each spouse consult briefly with another attorney who only represents him or her before signing the marital separation agreement. This ensures that both spouses enjoy the benefit of an experienced attorney’s analysis of their settlement before filing it in court, which only further bolsters its enforceability.
Picking a Mediator
It could be that a friend of yours has used a mediator and had a positive experience. Referrals are always a great way to find a good mediator. If, like many Californians, you don’t know anyone who has used a mediator, you can simply interview a few and decide whom you like the best. Most mediators maintain a webpage; a simple on-line search for mediators can be a good starting point. Here are a few qualities to look for:
A mediator should have completed at least one 40-hour program in mediation. This is hardly enough to signal competency, but it’s a start. Some attorneys feel that because they have experience as family lawyers, mediation training isn’t necessary. This simply is not true. Mediation and litigation are two entirely different processes with vastly different skill sets. Indeed, some wonderful litigators make horrible mediators. Mediation training teaches students to approach divorce differently. Instead of arguing over positions, students learn to uncover underlying interests. It sounds simple, but it actually takes some training to develop the tools to get this done effectively.
A more experienced mediator is a better mediator, right? Often, but not always. Certainly you should seek a mediator who has more than a few mediations under his or her belt, but once the threshold of competency has been passed, personality and style are more important than number of cases mediated. Very experienced mediators will cost more, and they may not have as much time to devote to your case. On the other hand, their experience may help them deal with complex financial situations, unusual custodial arrangements, and high conflict mediation sessions.
Each mediator brings his or her own personal style to a mediation, ranging from extremely passive to fairly aggressive. At one extreme, a mediator may simply make arrangements for the parties (and potentially their attorneys, if they are represented) to meet in a neutral location, and then utter scarcely a word. At the other extreme, a mediator may strongly advocate for a certain position he or she feels is the best alternative for the parties. Most clients prefer an approach somewhere between the two.
Some mediators focus almost exclusively on interpreting, reframing, and paraphrasing the parties’ comments in an attempt to help them communicate more clearly, while others will actively work with the parties to generate and expand options for settlement. Some mediators will attempt to predict the position a judge would take on a particular issue, while others think such speculation is inappropriate.
In short, mediators use a wide variety of styles. There is no right or wrong answer, though anything at the extremes demands a bit more scrutiny. You should pick a mediator whose approach to mediation makes you comfortable.
Above all else, you must trust your mediator and have absolute faith in his or her integrity. Beyond that simple requirement, you should also look for a mediator who exhibits some of the following qualities: common sense, empathy, creativity, flexibility, humor, intelligence, and optimism. Decide which of these qualities is most important to you, and don’t settle for a mediator who doesn’t exemplify your priorities. Also, don’t hesitate to decline working with a mediator simply because he or she makes you uncomfortable. For mediation to succeed, you must intuitively feel that you are working with a nonjudgmental, fair, and unbiased professional.