Mediation

The Perfect Match: Choosing a Mediator

Chris and Deanna were ready to move ahead with their divorce. Deanna had been reading a lot of books about divorce, and one discussed mediation as an option. She mentioned it to Chris, and he thought they should give it a try and suggested Deanna find a mediator.

First Deanna called the attorney who did their real estate closing. She suggested that Deanna call the bar association. Deanna did that and got a list of names. The book she read mentioned that there are state and local mediation associations, so she did an online search and found one for their area, with members listed. Deanna took a look at where the mediators were located and made a list of the three closest to call. She called their offices and got some basic information about fees and qualifications and set up free consultations with two mediators for her and Chris. One mediator was a therapist and one was an attorney.

Deanna made up a list of questions to take with her to the sessions and tried to be observant while in each mediator’s office. She and Chris both asked questions at the sessions. After visiting both, Deanna and Chris agreed that they felt more comfortable with the second mediator, so they scheduled an appointment.

Deanna and Chris felt ready to begin mediation because they had done a thorough search and asked enough questions to give them a sense as to whether each mediator was someone they would be able to work well with. A mediator sets the tone for your sessions and guides you through the divorce process, so it’s important you feel comfortable with the mediator you and your spouse choose. In most areas there are many mediators to choose from, so you have a variety of options.

Consider the mediator’s other profession (many are attorneys or therapists), the number of cases he or she has handled, and the different types of mediation he or she offers.

Types of Mediators

Mediators come in all shapes and sizes, although most commonly their professional backgrounds are either as attorneys or therapists. And while you can’t judge a mediator based on his or her profession of origin alone, it is important that you evaluate mediators based on their skills, personality, experience, and training.

Choosing a Mediator

Mediators with backgrounds as attorneys or therapists have their own advantages. An attorney-mediator will have a very good grasp of legal issues and understands how your case might be decided should you go to court, while a therapist-mediator will be more experienced in helping people work through their emotions and can manage a couple’s hostility, anger, and hurt in order to get to a solution.

You may be able to find mediators who are accountants or financial planners, although they are rare. This type of mediator is useful if your issues are financially complicated or sensitive. Clergy also sometimes work as mediators. When considering a clergy-mediator, be sure that he or she will help mediate a divorce and not a reconciliation (if that is what you want). Retired judges will sometimes act as mediators. They have an excellent grasp of the law and the ability to see solutions, but because they are used to calling all the shots, they sometimes may not be as adept at guiding the parties toward their own decisions.

How to Find a Mediator

If you already have a divorce attorney, ask him or her for a referral to a mediator. If your attorney is a mediator, you will not be able to mediate with him or her since he or she has already been retained as your personal attorney and has a conflict of interest. If you don’t have an attorney or if you don’t like your attorney’s recommendation, you can find a mediator in the following ways:

  • Call your state or local bar association for a recommendation. Some maintain lists of all mediators, while others only refer to attorney-mediators.
  • Locate your local or state mediation association and obtain a referral.
  • Contact the Association for Conflict Resolution, the national professional organization for mediators, for a referral.
  • Ask family and friends for the names of mediators they have used.
  • Contact your local Better Business Bureau’s Community Dispute Resolution Program (consult your local phone book because these programs
  • are administered on a local level) and ask for mediators they work with.
  • Call your courthouse and ask for a list of available court-appointed mediators.
  • Look in your yellow pages under dispute resolution, divorce, divorce assistance, mediation, or divorce mediation.
  • Look in online directories, such as Mediate.com (www.mediate.com)

Make sure to find out if mediators pay to be listed in the directory (because then their inclusion in the directory is an advertisement and not a recommendation) and if they must meet any minimum qualifications to be listed.

Choosing a Mediation Approach

As discussed in previous posts, there are several different varieties of mediation styles—including co-mediation, shuttle mediation, attorney-assisted mediation, and so on—you can choose from. By far the most common approach is traditional mediation, in which you and your spouse will meet with one mediator in one room. But there are other options available, and one of these might be more suited to your situation. If you are interested in any of these types of mediation methods, discuss them with your spouse and potential mediators.

Mediator Credentials

When you interview potential mediators or obtain information about them, you will want to know their profession of origin (as mentioned earlier, many are therapists or attorneys). There is no required licensing of mediators in any state in the United States at this time. It’s important to note that many states certify mediators to work in court-ordered or court-recommended mediation programs, but this does not mean that a mediator without that certification is not qualified to do independent mediation.

The American Bar Association and the Association for Conflict Resolution have begun a national study to determine if a national certification program

would be feasible and useful, but at the time this book was published, no decision had been reached.

Look for all of these qualifications in a mediator:

  • The mediator handles (or has handled) divorce or divorcing couples in his or her practice as an attorney or a therapist. Attorneys (if they are still practicing as attorneys in addition to being mediators) should be members of the state or local bar divorce or custody committees or the American Bar Association sections; therapists (if they are still practicing therapists in addition to being mediators) should be members of the American Association for Marriage and Family Therapy or a state family therapy association.
  • The mediator has completed a minimum of forty hours of divorce mediation training given by professionals in the divorce mediation field, usually other attorneys or therapists. The training should be specific to divorce mediation and should include domestic violence training.
  • The mediator is a member of his or her local or state mediation association and/or the Association for Conflict Resolution. This shows that the mediator complies with the organization’s rules of conduct for mediators and stays abreast of changes in the law and in the field of mediation.
  • The mediator has successfully completed at least twenty other divorce mediation cases.
  • The mediator has access to another professional mediator for professional consultations. It is common for mediators to consult on cases without revealing their clients’ identities to obtain another point of view or suggestions for helping the couple successfully complete mediation.

You may wish to ask your mediator for references, but realize that since mediation is a confidential process, many participants may not wish to have their names given out as references, so even well-qualified mediators may not be able to provide references.

Mediator Standards

The American Bar Association, the Association for Conflict Resolution, and the American Arbitration Association have created model standards of conduct for mediators, which you can read online. All mediators should follow these standards, though they are not legally required to. Read over and familiarize yourself with these standards so that you can ask potential mediators if they comply with them.

Questions to Ask Mediators

When you have the name of a mediator you want to consider, go in for a free consultation. This will give you and your spouse an opportunity to interview the mediator and decide if he or she is someone you would feel comfortable working with.

Ask the mediator these questions:

  • What are your fees? Mediators normally charge between $75 and $200 an hour, depending on your geographic area and the mediator’s experience.
  • Is there a retainer fee? Most mediators request a retainer fee, which covers the first few sessions and work done out of session (such as phone calls and document preparation). Most mediators accept cash or checks.
  • Do you have a written contract? A written contract or agreement is recommended since it will clearly list all fees and your responsibilities, as well as the mediator’s.
  • What kind of document will we end up with at the end of mediation? The type of document will depend on your state and also whether or not your mediator is an attorney. If you have an attorney-mediator, you may have a document that can be filed directly with your court, or if your mediator is not an attorney, you will have a document that lists all of your decisions and agreements, which must be copied into a court document by one of your attorneys.
  • How many mediation cases have you handled? You want a mediator who is experienced and has handled at least twenty cases to completion.
  • What kind of mediation training do you have? Look for a mediator who has completed a minimum of forty hours of mediation training, as well as domestic violence training.
  • What relevant organizations do you belong to? Mediators should belong to a state or local mediation association or the Association for Conflict Resolution.
  • How long were you or have you been a therapist or an attorney? If someone practiced law or therapy for only a few months and is a newer mediator, it might be an indication that he or she does not have enough background to handle mediation.

    On the other hand/someone who worked as an attorney or a thera- pist for only a brief time but has worked as a mediator for a significant period of time is probably well qualified.

  • Why do you think mediation is a good choice? Through the mediator’s response, you will learn about his or her perception of mediation and get to know his or her perspectives better.
  • How many sessions do you think our case would take? Typical cases run six to ten sessions, but the number of sessions can vary greatly depending on the facts of the case and personalities of the couple.
  • How often do you schedule sessions? Most mediators suggest you meet once a week, but they are flexible to meet your needs.
  • What’s your cancellation policy? Usually mediators will not charge you for cancellations unless they become excessive.
  • Can you tell us a little bit about how the mediation process will work? Through the mediator’s response, you will learn such things as how he or she sets up sessions, what the mediator’s approach will be, what order the issues will be decided in, and whether or not you will be given homework (things to work on outside of sessions).
  • How long will it take to finish our case? Typical cases are resolved within a few months, but it is completely dependent on how available you are for meetings and how available your attorneys are. Actually filing and finalizing your divorce in court can take longer, and this is dependent on your state’s process.
  • What kind of role will you play? Through the mediator’s response, you will learn about the type of mediation he or she practices and get a glimpse of the way he or she will run the mediation.
  • Will you go along with any type of agreements we make? Mediators are there to help with the process and not to make value judgments about your situation or the choices you make. However, all mediators should refuse to draft an agreement that is so unfair it would not be accepted by the court or is blatantly biased toward one of the parties.
  • Do you use outside professionals, such as accountants and financial planners, if necessary? Some mediators will bring in outside professionals if a case warrants it. Cases that are extremely complicated are best suited to this kind of help.
  • Do you have experience involving children in mediation? Some mediators will suggest you bring preteens or teens to a mediation session to allow them input in deciding where they will live and how they will spend time with their parents.