Choosing a Mediator
How Do We Choose a Mediator?
Finding and selecting a divorce mediator may be easier if you follow some of the simple steps provided here. It is recommended you and your spouse take the time to work together to ensure you have a mediator with whom you both are compatible, respect, and believe to be best qualified to help negotiate an equitable settlement. Start by generating a list of mediators in your area. In compiling your list do not rule out mediators who are a moderate drive away from your home; the right mediator may be worth the drive. Next call each of the mediators and interview them.
Here are some factors to consider when choosing your mediator.
1. What is the mediator’s training?
Anyone can call themselves a mediator; there is no formal training required. The basic conflict resolution training required to join the Association of Conflict Resolution is 40 hours. A mediator should have met this minimum requirement. Divorce mediators can also have varying backgrounds. Most are attorneys but you will find financial advisors and mental health professionals are mediators as well. Your choice to go with one profession over the other should be based on the concerns at hand in your divorce. Each profession has their own set of specialties to bring to the table which is why professionals often work together when helping their clients through a divorce. Question if the mediator is trained in family law specific mediation as general mediation skills can be very different compared to the dynamics of unraveling a family.
2. How long have they been practicing as a mediator? How long have they practiced in their profession? Do they practice Collaborative Divorce and other forms of family specific dispute resolution?
Mediators with resumes including other commitments to alternative dispute resolution in the family law field such as Collaborative Divorce practice demonstrate a commitment to their work. Mediation is still a relatively new way to end a marriage so the amount of time in practice is less important than you might think. It could be more beneficial for you to consider the level of commitment a mediator has made to practice family law specific dispute resolution verses considering how long they have been mediating.
3. How many divorce cases have they mediated?
Mediators often handle community and business disputes as well as divorce. The concerns involved in divorce matters are very specific and a detailed level of knowledge about those concerns is critical. Just as it is suggested clients seek the advice of attorneys who specialize in one area of the law rather than seeking advice from a generalist, it is suggested clients seek mediators with extensive divorce specific experience and training.
4. Does the mediator have any references?
Can the mediator provide you with names of other mediators, mental health professionals, financial advisors, or attorneys who will vouch for their aptitude? Mediation is confidential; the mediator may not be able to give you names of former clients. Attorneys, financial advisors, and mental health professionals will be the best source of objective information about a mediator. If the mediator works often with attorneys, financial advisors, and mental health professionals they will know how to help clients manage the involvement of those important advisors during the divorce process.
5. What are the mediator’s fees?
These vary significantly by region and based on profession. Most mediators require payment at each session; some will take a retainer up front. Remember cost is only a concern in the absence of value. Many divorcing couples enter a mediation process with the expectation it will be inexpensive. If a mediator gives you any indication of cost estimates before they know your situation you should expect you will exceed the estimate. It is impossible to tell how quickly and efficiently the mediation will proceed without witnessing the dynamic of communication between the parties and understanding the concerns to be resolved. Efficiency is the number one deciding factor of cost in divorce mediation. If communication is difficult, efficiency will be lacking, and the cost of mediation will increase.
6. Does the mediator have resources to help you make decisions?
Mediators might offer a website, brochures, lists of concerns to be considered during divorce mediation, relevant articles, and referrals to additional professionals. The quality of resources provided to you is a reflection of the mediator. If the materials appear to be hastily put together and not regularly updated, the mediation process could be similar in quality. If, on the other hand, the materials are instructive, relevant, and well put together, it is more likely the mediator’s process will be of a higher quality. Superior materials may also demonstrate the mediator’s level of commitment to their practice.
7. What is the mediator’s position about you hiring an attorney to help with your divorce?
Good mediators not only recommend but require attorneys for both parties review the settlement before it is signed. You should also consider a consulting attorney who can help you prepare for each mediation session and ensure you understand your rights and obligations under the law. Question if a mediator is experienced in managing the dynamic of having multiple attorneys involved in the mediation process as this task can be difficult. Having an attorney ensures you protection from any legal oversights during the mediation. Mediators should supply clients with a list of mediation-friendly attorneys who will make sure you understand the law without undermining your choice to collaboratively negotiate a settlement with your spouse.
8. What is the mediator’s style?
Mediator’s processes vary significantly. It is useful to understand some mediators are highly directive; offering evaluation of the likelihood a judge will sign off on one or another option in court and giving you concrete proposals for resolution of conflicts. Other mediators take a more facilitative approach; empowering the couple to make their own choices through deft questioning and discussion. Neither style is ideal for every divorce case. The best mediators adapt to their case or even the specific topic at hand. Ask questions of the mediator similar to, “Will the mediator work with the counsel for each party in the room?” or “Will the mediator caucus with clients individually?”
9. How do you feel about the mediator?
Divorce is never fun. If you are uncomfortable with a mediator, for any reason, you should continue your search. If you do not trust or feel comfortable with a mediator it will be impossible for you to open up to them. This is the person you have chosen to shepherd you through one of the most chaotic and emotionally devastating decision making processes you will experience in your life. It is important you feel confident their skills and experience will properly address each party’s needs and concerns throughout your divorce process. If at any point in the process you do not feel comfortable with the job your mediator is doing you need to express your concerns promptly. If you concerns about their mediation style are not addressed it might be necessary to find another mediator who you both feel confident and comfortable with.
10. What if you have already retained an attorney but want to pursue mediation?
Some mediators will not work when parties have legal counsel pursuing a parallel process. Find out how your planned mediator feels about this set up. Parallel processes can be counter-productive and requires a mediator willing to do some traffic control but there are very good reasons for a parallel legal process in certain cases. Ask your legal counsel if they are willing to work as a consulting attorney during a mediation process. Find out if they have experience in this role. If you make the decision to pursue mediation instead of the litigated path originally discussed with your attorney and they are not willing to act as your consultant you should request a refund of your retainer and find someone who is. Your mediator can refer you to mediation friendly attorneys.
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