Mediation

           Mediation

 

 

Every couple is well advised to resolve their differences through negotiation, if it is possible to do so. Often, however, it is not. It is often extremely difficult for couples going through a divorce to negotiate directly with one another, without an intermediary. The emotions are too raw, and the objectives are often mixed and confused. Mediation is an alternative for those couples trying to resolve their differences but who need the assistance of a third party to keep them informed, focused and “civilized”.

 

In mediation, a third party participates in the negotiation over the issues involved in the divorce. The mediator does not impose a “fair” or “equitable” solution upon either of the parties if the parties themselves cannot reach an agreement on any particular issue. Agreement is not mandatory. The mediator makes suggestions and asks the participants to consider alternative solutions. A good mediator participates in ways which encourage and allow the participants to achieve their own solutions. A mediator is a “guide” through the minefield of the parties disagreements. The mediator is typically an individual with a background and expertise in financial and/or parenting issues involved in divorce

 

Mediation is often described as a “voluntary” or “cooperative” process. It is based upon a belief that if individuals can resolve their own problems, they should. Mediation is a way of reaching an “out-of-court” settlement on all or some of the issues involved in the divorce without the need for more intrusive types of intervention such as litigation. It allows the parties reach a solution responsive to their particular family’s needs and circumstances, rather than having a solution imposed upon them by lawyers, a judge, an arbitrator or blind fate. Judges can only create the solutions given to them in “the law” i.e. in the statutes which have been passed by the legislature. Neither the parties nor the mediator are bound by this limitation. The parties are free to create, and the mediator is free to suggest, solutions which a Judge is not allowed to consider.

 

A solution which the parties negotiate and agree upon is also more likely to be adhered to than is a solution (a) imposed upon the parties by a judge or by an arbitrator, both of whom is likely to be less knowledgeable about their affairs, or (b) as a grudging concession to a process accompanied by various forms of “duress” (E.g., time and cost). 

 

Mediation is a “private” process, with the mediator helping to keep the process structured and focused on solutions that are palatable to the needs of both parties. The disputed issues may involve children and/or financial issues. The mediation of issues

 

relating to children may require a background and expertise different from the background and qualifications of mediating financial.

 

            Mediation is not appropriate in every situation. To determine whether mediation is appropriate, it is important to understand the nature of the problem and why each party is considering mediation as opposed to other alternatives. For example, is there a history of 
dominance or other indicia of a high level of conflict in the relationship? Is one party using this medium to isolate the other party from any outside assistance? Are there disparities in the parties’ respective knowledge and abilities? Is there a history of intimidation or
violence? Is one party less sophisticated financially?  Any of the foregoing can make “voluntary” participation a fiction. The "balance of power" between the parties doesn't have to be equal, but any imbalance must be manageable. The less sophisticated party must be able and willing to educate himself or herself about finances, or a mediator may suggest the spouse seek outside consultation with an expert during the course of the mediation. With information provided by the mediator, or by an outside professional, the less knowledgeable party can be brought "up to speed," and power can be equalized. Since mediation is voluntary, to be viable candidates for mediation, each spouse must have the ability to listen to the other, even if it requires the mediator's guidance and assistance. Unless both parties are “committed” to reaching an agreement, it will not work. There must be a mutual willingness, however reluctant it may be, to make the compromises and concessions every successful negotiation depends upon. 
 

Mediation takes as many forms as the personalities of the mediator. The styles of mediation fall along some unstated continuum which is measured by the degree of the mediator’s “intrusion” into the parties “voluntary” participation. Some mediators consider it improper to interject their own views about the probable outcome if the dispute were to be judged in a court. Others consider that information necessary to the process, because disputes always are resolved, “under the shadow of the law”. The “law” in this sense creates norms and expectations by which the “combatants” decide what is reasonable.

 

Although the parties engage in settlement discussions with the assistance of a person whose loyalties are “neutral”, both parties are free to consult with a lawyer at any time. In one “model” of mediation, attorneys for each party are present during the discussions. Litigation is generally suspended during the process. (The participating attorneys may be prevented from representing the client in court if the mediation fails.) Theoretically, the parties remain the principal negotiators with the aid and assistance of the mediator. Attorneys are present to suggest solutions, support their client and to "level" the playing field. This form of mediation can be more expensive than forms of mediation in which attorneys are not physically present during the discussions, although less expensive than traditional litigation.

 

In a more typical “model” of mediation, each party is free to consult with a lawyer at any time. If the financial issues are complex, or if one party feels “dominated” by the other party, it may be wise for that party to do so. Although this may escalate the costs, retaining counsel during the mediation allows a party to compare the terms being negotiated with what might obtained if the differences were to be resolved through the legal system. Retaining independent counsel can lend comfort to the process and make the outcome more acceptable and palatable in the future.

“Satisfaction” with mediation depends upon how it conforms to the expectations of the participants. Arguably, this is more important than any other factor in the “success” of mediation in achieving lasting solutions. Therefore, it is important that the participants understand the type of mediation in which they are about to participate. At the outset of mediation, the mediator should explain how the process will proceed, describe the manner in which the mediator will participate and lay general rules and expectations. It is important that participants have an accurate description of how decisions will be made in the mediation which is about to take place.  Eliminating surprise and misperception about

the process itself is critical to its long term success. It also reduces the fear, frustration, suspicion, anger and hopelessness which can impede the process of mediation. If a divorcing spouse (or their attorney) goes into a mediation expecting the mediator to offer opinions regarding the strength of their positions and then realizes that the mediator is unwilling to do that, they are likely to be disappointed and frustrated.  Similarly, if a client is expecting a neutral facilitator who does not offer their opinions on the “best” or “most likely” solutions to the disagreement, but receives repeated criticisms of their positions, they, too, are likely to retreat from the process. The mediator will attempt to identify and define the “problems” and issues from each spouse’s perspective. The parties, with the mediator’s assistance, should try to agree upon what information should be exchanged, particularly financial.

 

To be effective, particularly in matters financial, the mediation must include complete and honest disclosure about financial matters i.e. assets, debts, income and expenses. If either party is reluctant to openly and frankly disclose financial data, of whatever type or quality, the process will be suspect. Mediation is a voluntary and private process. Litigation is a public and coercive process. Attorneys involved in litigation have available to them a variety of coercive devices to force full and complete disclosure of financial data. If either party is dissatisfied with the extent of the disclosures, mediation is likely to fail.

 

In mediation, as in any negotiation, once full financial disclosure has taken place, there may be disagreements about how to “interpret” the data. A typical example would be the issue of “value”. If one party is the owner of a small business, even after there has been full disclosure, there may be a difference of opinion about the value of a business. In mediation, it would be the task of a mediator to suggest a mutually agreeable process to resolve those differences of opinion. As one example, the parties may agree to employ a mutually agreeable expert to analyze the data and render a binding opinion regarding the value of the business. The parties may have strong disagreements their respective entitlements to the value, but the use of the expert can focus the dispute on a that issue, rather than letting that disagreement break down the entire negotiation.

 

        During the problem-solving stage, areas of disagreement must be identified, common goals and concerns should be discussed and some resolution of the disputed areas of concern will be will be negotiated. Generally, one of two issues will have primary significance to the parties. Often, the least controversial issues are resolved before entering into discussion of the issues which are of deepest concern to either or both of the parties. At this stage of the mediation, either or both party may seek outside assistance and consultation. The effect of the outside consultation is difficult to predict. It may lead to

 

further compromise. In the alternative, it may harden the respective positions and lead to a breakdown in the process. Such a breakdown is not necessarily a failure of the mediation. Indeed, it may have helped clarify and narrow down the issues. If the parties then enter another arena, be it arbitration or litigation, a winnowing down of the real issues will save both parties time, money and grief.

 

        If agreement is reached, a mediator typically takes one of two courses of action. First, the mediator may draft a Settlement Agreement. Second, the mediator may do a written summary of the agreement, immortalizing its content for the parties. In the second method, one of the parties will take the summary to an attorney of their choosing and request that the attorney draft a formal Settlement Agreement. The other party will, and should, have the written Agreement reviewed by an attorney of their own choosing. It is not proper, nor is it wise, to have one attorney perform this review task for both parties.

Under either of the alternatives above mentioned, each party should have the Agreement reviewed by an attorney of their own choosing. The contents of a Separation Agreement are extremely important. It is essential that any ambiguities or uncertainties be eliminated if future disagreements are to be minimized. It is worth the cost. Consider the attorney review as an insurance police whose purpose is to reduce the cost of any future disputes.

 

Does a party need a lawyer during Mediation?   Unless a divorce is very simple (following a short marriage without children and with minimal property), mediators generally recommend that each party consult with a separate lawyer. It is improper and unwise for both parties to use the same lawyer. A lawyer's role is to represent the best interests of their client. During the course of the mediation, a lawyer can (1) provide advice about a realistic settlement range if the matter in dispute were resolved in the Court System; (2) suggest settlement options; and (3) review the Agreement to eliminate ambiguities and to be clear that it is responsive to the needs of the client  

 
Doesn't a lawyer defeat the whole purpose of using mediation?   No, not if each party's lawyer understands and supports the mediation process.  It is important to understand that the role of the lawyer in mediation is not the same as in the traditional adversarial process.  In mediation, the lawyer acts only as a consultant or "coach" to the party; the parties themselves negotiate their agreement. 
                    
At what point should a lawyer be consulted?    In some situations, lawyers are consulted only after the mediation has been successfully concluded. At that point either or both of the parties may retain a lawyer to (1)  review an Agreement drafted by the mediator or (2) to draft an Agreement based upon a memorandum of understanding prepared by the mediator. Either party is free to retain a lawyer to give them advice and suggestions during the mediation and before any agreement has been reached. Some mediators encourage this, others resist it. If you are the least bit uncertain, you are well advised to retain a lawyer during the process.

 

What qualities should I look for in a mediator?    It depends upon the issues which are involved. Mediators with a mental health background are appropriate when the issues involve children and parenting. Mediators with a legal background are more appropriate when dealing with financial matters. If the financial matters are complex, you need to know whether the mediator intends to bring additional expertise into the process, either

 

by (1) selecting a mutually agreeable expert or (2) by asking that each party seek outside consultation.   Beyond the mediator’s own background (ask for a resume), it becomes a matter of personality, demeanor and your own comfort level. Do not ignore these intangibles. Mediation is supposed to be a “voluntary” and “consensual” process. Are you able to speak? Does the mediator listen? Are you constantly interrupted”? If you become uncomfortable—either discuss it openly or find another mediator.

 

How much does a divorce mediator cost?   Mediators charge an hourly rate comparable to most attorneys. The potential for reducing the cost of your divorce rests not in the hourly rate which is charged, but in the time saved in the process. Some mediators request money “up front”, comparable to the retainers charged by most family lawyers. Others are paid “as you go” i.e. at each session. There is no finite answer to the number of sessions it might take. Like everything else, “It depends”.

Isn't divorce mediation cheaper than going to lawyers?   Generally, yes. But do not lose sight of the other advantages of mediation. It is private, and a major benefit lies in the time saved in the process of becoming divorced. It is an anxious and unnerving time. “Closure” allays a great deal of anxiety!

 

What are the disadvantages of divorce mediation?   If a mediator is not well qualified, or if a mediator insists on drafting a Settlement Agreement which is ambiguous or incomplete, mediation can result in significant future disputes. A mediator should be secure enough that a review of his or her work product by a lawyer for each party before any Agreement is signed is encouraged, not discouraged.

 

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