The Most Common Questions Asked About Mediation
by Diane Neumann, Mediator, J.D., M.A.
Divorce mediation is fast becoming the way for couples to reach a settlement. Diane Neumann is one of the leading divorce mediators in the country. In 1981, she was one of the first to establish a private practice. Diane authored two books, Divorce Mediation: How to Cut the Cost and Stress of Divorce, and Choosing a Divorce Mediator. She is a certified (MCFM) mediator and a National AFM consultant. In this article, Diane tells what to expect if you and your spouse consult a divorce mediator.
At what point should you use mediation?
Will a mediator make any decisions for us?
Won’t the mediator take sides?
Why do you need a mediator to help?
Does a mediator meet with the children?
Is there any risk in using mediation?
Will you get a better settlement if you go to court?
Primarily, because you will:
2. At what point should you use mediation?
As early as possible. It is best to start mediation before the actual physical separation rather than waiting because the mediator can help separating individuals make good decisions. For example, a mediator can help create a good temporary parenting arrangement, calculate the amount of child support, and assist in determining responsibility for the payment of rent or mortgage.
3. How do you choose a mediator?
The success of your mediation will be greatly affected by your choice. You may want to ask the following questions:
1. What issues do you mediate?
2. How long have your been mediating?
3. How many mediations have you done?
4. What mediation training have you had?
5. What percent of your practice is devoted to mediation?
6. Are you certified? By which organization?
7. What is your experience/knowledge in:
a. Divorce law
b. Parenting plans
c. Financial issues
d. Tax consequences of settlement
e. Other matters of divorce (pensions, life insurance, etc.)
8. Will we have confidentiality during the session?
9. What is the average number of mediation sessions?
10. How much do you charge?
4. How much does mediation cost?
Mediation rates vary, as does the cost range of other professionals. The average mediation involves approximately ten sessions plus the cost of the Divorce Agreement. This cost is significantly less than the cost for an attorney-assisted divorce.
Mediation fees should be based on an hourly rate and not contingency arrangements.
Contingency means that the cost of the mediation depends on the settlement itself, an example is that the mediator gets five percent of the settlement.
Mediation takes an average of five sessions, generally spread over five to ten weeks, though it may take more time or less because of the specifics involved. By comparison, an adversarial divorce takes more in the nature of one to two years to hammer out a final settlement.
In a mediated divorce, the length of time is determined by the couple, as the court does not intervene. In a court-litigated divorce, the divorce may take years. A recent article in the American Bar Journal described a man who has spent the past twelve years actively pursuing his divorce. (In case you’re curious, he still isn’t divorced!)
During mediation there are several factors that influence how long it will take to reach a final settlement. People with the following characteristics do well in mediation:
· The couple chooses mediation voluntarily.
· They are parents who want what is best for their children.
· Each person wants to separate his or her anger from the divorce issues that must be resolved.
· Both are willing to let go of the marital relationship.
· Each person wants to make his or her own decisions.
· There is some respect left for his/her spouse.
· Each wants to save money.
· Neither wants to drag out the length of time it takes for negotiations.
The mediation may take longer if one or both spouses:
•Absolutely refuses to accept the end of the marriage.
•Has a complex financial portfolio that includes such investments as limited partnerships and tax shelters.
•Is extremely hostile and verbally attacks the other spouse.
•Does not care about what’s best for their child.
It is attitudes, rather than assets, that determine how long it takes to negotiate a settlement. Reasonable men and women typically have a short period of negotiations. In all cases, mediated agreements are reached more efficiently than in the adversarial arena.
6. Will a mediator make any decisions for us?
A mediator does not make decisions for you. It is an arbitrator or judge who makes decisions. A mediator performs something which is more valuable— helps the couple to make decisions that each knows is fair. This informed decision-making component is one reason why mediated agreements have a high compliance rate.
7. Won’t the mediator take sides?
No, a good mediator does not take sides. Remember that therapists have long counseled couples without “taking sides.” The ability to be impartial is the most important skill of the mediator, and is an important reason why people need to choose a competent mediator.
8. Why do you need a mediator to help?
There are two main reasons. First, the end of a significant relationship involves such intense emotional turmoil that it is difficult for two people to resolve issues fairly without professional assistance. Second, most individuals do not have the specific knowledge necessary for making informed decisions. For example, a couple may think that the pension which is in the husband’s name automatically belongs to him, not realizing that the law in this state (as in many others), considers retirement accounts a marital asset.
If you are separating or divorcing, you need a professional mediator’s assistance if any of the following apply:
1. Married four years or more
2. Have minor children (under age 18)
3. Own a house or any other real estate
4. Have more than $50,000.00 in assets
5. Have an inability to communicate with each other
6. Only one spouse is employed
7. One spouse has more financial knowledge than the other
8. One or both is self-employed
Mediation, which uses the assistance of a neutral professional, is the closest to a do-it-yourself divorce settlement, as you are the ones making the decisions.
9. Does a mediator meet with the children?
No, instead, the mediator meets with both parents in order to help them create a parenting arrangement which is in the best interests of their child. A knowledgeable mediator knows about the developmental stages of a child, and specifically, understands how the crisis of separation and divorce affects a child. The mediator can help to create a post-divorce arrangement that will work because it takes in every family member’s concerns.
10. Is there any risk in using mediation?
Your mediator is not well-skilled if he or she:
1. Acts solely as a referee for the divorcing couple.
2. Makes decisions for you.
3. Takes the side of one person against the other.
4. Is not knowledgeable about divorce laws, federal and state taxes, pension and retirement funds, stock options, and any other area of your agreement.
11. Do you still need a lawyer?
“In early Greece, republican Rome and dynastic China there were rules against paid legal advice,” says Jerald Averbach, in his book Justice Without Law. Many separating individuals wish this was true today, fearing that a lawyer will sabotage their mediated divorce settlement.
The majority of mediators recommend that each client consult with a separate lawyer at some point during the mediation and often, prior to signing the divorce agreement. The consulting lawyer’s attitude toward mediation is critical: the client needs to find out if the lawyer is supportive of mediation as well as experienced in working with a mediator. Most clients simply ask their mediator for a referral to an attorney.You may choose to use a separate lawyer, and her or she should give advice, but you must take responsibility for the decisions. Men and women in mediation make their own decisions; that is one of the many strengths of the process.
12. Will you get a better settlement if you go to court?
I’ve been asked, “Won’t I get the entire house if I go to court and tell the judge what my husband did?” or “Wouldn’t the judge see that I shouldn’t have to pay that much child support to my ex-wife?” Men and women who ask these questions have never appeared in divorce court; if they had, they would know that you rarely get a chance to tell your story in court and when you do get the opportunity to speak, the information you think is essential is often not allowed into evidence. The final court decision will most likely hinge on a technical aspect that seem absurd to someone not versed in “the law.” The goals of the judge often differ radically from yours.
The reality of a divorce court trial is that most litigants walk out of the courtroom feeling as if they have just been run over by a truck. The winner often finds his or her enthusiasm dampened by the warning they hear from their lawyer to prepare for the next round, when their soon-to-be-ex-spouse will appeals the judge’s decision. An appeal means another trial, more money, and, of course, the emotional trauma that seems to have no end. Maybe some people should go to court, but I advise you to try not to be one of them. Mediation offers a common-sense, less expensive and less traumatic way to reach your divorce agreement.
Diane Neumann, M.A., J.D., is a full-time certified divorce mediator in private practice since 1981 at Divorce Mediation Services in Newton, Massachusetts. Her mediation firm has a panel of seven mediators. She is author of Divorce Mediation: How to Cut the Cost and Stress of Divorce, 1989, and Choosing A Divorce Mediator, 1996, both published by Henry Holt & Co. Diane is a Past President of the National Academy of Family Mediators and President of Divorce Mediation Training Associates. Formerly, she worked as a therapist and for the Federal Internal Revenue Service.