Mediation is the most common dispute resolution option; however, it is often misunderstood. Mediation allows you and your spouse to reach a fair settlement with the help of a third, neutral party called a mediator. Mediators, who can be lawyers, mental health professionals, clergy, or other professionals trained in alternative dispute resolution techniques, help you and your spouse identify and resolve issues. Basically, mediation is similar to sitting down to negotiate with the help of a referee.
The most important thing to understand is that mediators cannot give either of you legal advice. They are not a substitute for having your own lawyer. This is one important distinction between mediation and collaborative divorce: collaboration is (generally) an all-inclusive package, while mediation is more like one step (albeit an important one) in the process. You will almost certainly still need to hire an attorney. The mediator’s role is to help you and your spouse communicate and reach agreement while your lawyer’s role is to make sure your legal rights are protected.
Mediation is confidential, allows you and your spouse to make the decisions, and is less expensive than filing a lawsuit and going to court. The goal is to be able to reach a positive agreement that is more customized than the one you might receive from a judge.
In mediation, you are responsible for your attorney’s fees, as well as half of the mediator’s fees. In certain states, mediation is required by the court after a lawsuit has been filed; for example, North Carolina requires couples to attend mediation before a child custody trial and equitable distribution trial.
Disadvantages of Mediation
There are, of course, many advantages to a mediated divorce, the most obvious of which is the diffusion of the negativity that can surround negotiations. A skilled mediator will ratchet down the hostility, enabling both parties to move on with their lives in a positive way. The goal of mediation is to achieve a rapid, low-cost, and reasonable agreement between spouses, and it sometimes works. But we have some significant concerns about the way mediation is marketed and practiced at this point in time.
One significant distinction between mediation and collaboration is the amount of training and accountability involved. The vast majority of states do not regulate mediators in any way; there is no required training, no peer-to-peer oversight, and no way to monitor outcomes. Anyone can call him or herself a mediator and hang out a shingle; there is no clear, consistent definition of the term. As a result, there can be dramatic differences between practitioners. There are mediators out there who are well-trained in negotiation skills, well-versed in legal issues, and well-equipped to handle challenging conflicts. But by the same token, there are also mediators out there who are simply not able to give the guidance that most couples need.
One important skill that a trained, experienced mediator brings to the table is the ability to recognize situations in which mediation is NOT appropriate. For instance, an abusive person will manipulate the mediation process to take advantage of or control his or her spouse. We feel very strongly that any hint or history of domestic violence in a relationship automatically means that mediation is not a safe option for that divorcing couple. A good mediator will be able to identify a power imbalance in a relationship and recommend that the parties need to hire attorneys, so that the safety and best interests of the disadvantaged spouse can be protected. Unfortunately, not all mediators have the skills or training necessary to recognize cases that really need legal supervision.
Another disadvantage of using mediation instead of the legal system is our concern that some couples, and some mediators, don’t have all the information they need to be able to draft comprehensive documents and agreements that account for wide-ranging possibilities. If you don’t understand the child support guidelines, you can find yourself in real trouble if your budget suddenly changes and no mechanism for adjusting the payments was built into the agreement. Similarly, if a spouse doesn’t understand that the 401K plan is marital property and doesn’t stand up for his or her share, that person could lose a significant amount of money. Mediating without a thorough understanding of the big picture and the variety of possible outcomes can be expensive, if not downright dangerous.
Our final observation about mediation is simply that the more people you bring into a process, the more likely it is that mistakes will be made. The best mediators will recommend that both parties hire their own attorneys to physically write up any agreements that are reached during mediation. Unfortunately, this transfer of information from mediator to attorneys opens up multiple cracks in the process, through which important bits can disappear. If one attorney makes three changes to the agreement, and the other only makes two, those changes are not necessarily communicated to all the relevant parties. We have found that entire sections of documents have gotten lost in the paper shuffle between clients, mediator, and attorneys. We find that it’s safer for everyone if all the paperwork is done consistently, with a clear, orderly paper trail.
You will find mediators who provide exactly the opposite advice that we are offering you here; some mediators view lawyers as a dark force that almost inevitably creates conflict in a divorce that might have otherwise been resolved amicably. As we wrote above, we agree that some lawyers are overly adversarial and can run up costs unnecessarily. However, our view on this is that a mediator is not a replacement for a lawyer. We wrote earlier about the types of situations in which people should use lawyers in their divorce. If you found that you are in one of these situations we strongly believe you should get legal advice. You may choose some sort of unbundled service rather than a full representation approach, if you prefer, but your risk of something going wrong without legal help is just too high to not at least get input from a lawyer. Recognizing the potential for lawyers to add conflict helps you in choosing a lawyer who is cautious about going down this road and helps you see when it might be happening. With this awareness we believe that the concerns raised by some mediators about the use of lawyers can be overcome.
