Mediators Help Couples Compromise and Keep From Court Battles in Divorce

Their names suggest that mediation will be a painless alternative to acrimonious, bitter and costly divorce. But is hiring a mediator a sensible alternative to resolving a divorce with an attorney in court?

Divorce mediation offers an alternative to litigated divorce, explained Katherine Stoner, an attorney based in Pacific Grove, Calif., and author of “Divorce Without Court: A Guide to Mediation and Collaborative Divorce.” “With divorce mediation you get neutral help, which is less likely to be adversarial,” she said.

Indeed for many avoiding the argumentative aspects of divorce, where the attorneys battle it out, is one of the main appeals of mediation. With mediation, both spouses sign an agreement that they will reach a settlement that takes the other person’s viewpoint into consideration. With litigated divorce, the couple goes to court, and ultimately the judge decides.

The American Bar Association (ABA) has no official position on divorce mediation, but Gregg Herman, the chair of the Family Law committee said that the ABA considers mediation a conducive way to resolve family disputes and reach settlement, especially in cases involving children. Mediators are perfectly fine, especially if you’re hiring someone trained in mediation with a mental health background.”

However, Herman added that mediators will not advise people of what’s in their best interests. He advises that, even with mediation, people should consult with an attorney tobe aware of their rights.

WHEN MEDIATION WORKS

Not everyone is right for divorce mediation. Herman noted that when issues require legal knowledge in property division, business valuation, complex custody issues and issues of specialized knowledge, people should use lawyers or choose attorneys who are mediators. Stoner noted that people who are not in control of themselves due to psychological issues, drug, alcohol or drug abuse or domestic violence shouldn’t be in mediation.”

People whose judgment are impaired or are so vitriolic that they can’t sit in the same room as their spouse, like the characters in the film “War of the Roses“, aren’t likely mediation candidates. But mediation will work for most people who are motivated and civil, Stoner suggested.

Moreover, Stoner noted if there’s a power imbalance in the relationship in which one person dominates the others, mediation could prove difficult. One way to overcome that discrepancy is to have the weaker person bring a support person to the sessions, Stoner suggested.

COSTS OF MEDIATION

Choosing mediation over litigation can save money, according to Stoner. Because attorneys must prepare for trial, Stoner estimates the average divorce costs $73,000 per couple. Hiring a mediator who is an attorney saves money, since the average mediation cost, according to Stoner, is $6,570. Stoner charges her normal attorney fees as a mediator. But the cost is less because she spends one-tenth the time on cases that are mediated. “With mediation, you don’t have to present evidence to a judge. You’re saving the cost of an attorney’s expensive time,” Stoner said.HOW MEDIATORS WORK

Mediators look at issues from a holistic view and consider psychological, emotional, and social issues, not just legal ones, explained Elinor Robin, a psychologist who co-runs A Friendly Divorce in Boca Raton, Fla, with her husband David Spofford, an attorney. “A legal divorce only looks at legal issues,” she stated.

“Mediators listen to both parties, facilitate a discussion and help both parties reach resolution. The role of the mediator is to allow parties to come to their own fair settlement,” Robin said.

“In the pre-Internet days, people who hired mediators needed to hire a lawyer to file divorce papers in court. By using the Internet and obtaining the necessary forms, couples can now file legal papers on their own and not have to hire a lawyer”, Robin said. “Paralegals can also be hired, if necessary, to prepare documents.”

MEDIATION AND CHILDREN

“Many parties opt for divorce mediation to spare their children pain. People are so concerned about their children’s well-being and not exposing them to acrimony that this motivation gets them through mediation,” Stoner said.

“Of course, it’s not easy sitting in a room with a soon to be ex-spouse and reaching compromises over custody and property, but it sets the stage to collaborate together for the children.How can mediators overcome the venom that permeates most divorces?Robin replied, In most divorces, each party thinks that he is the victim and the other was the perpetrator.We show that they create the dance together, and both are victimized and both are perpetrators. It deflates hostility.”

BEWARE OF THE TRAPS

There are caveats to consider when hiring a divorce mediator. One major consideration is divorce mediators, unlike attorneys, are unregulated in most states. Choosing a mediator by recommendation is preferable. If no one is recommended, interview several to see who is experienced and trustworthy. Make sure that everything that a mediator is going to do is spelled out in a written agreement.

When selecting a divorce mediator, also make sure the person has a working knowledge of divorce law and possesses negotiation skills.But attorneys must also possess mental health skills like counseling abilities when doing divorce mediation. One other alternative to divorce mediation is collaborative divorce, where the two attorneys and two clients sign a written document that they will work out an agreement without going to court. If they must go to court, they must give notice to the other attorney.

RESOURCES:

1. If you’re looking for a mediator, check out mediate.com, which locates specialized experts like divorce specialists.Use the prompts and ask for a divorce mediator in your zip code.

2. Katherine Stoner’s “Divorce Without Court: A Guide to Mediation and Collaborative Divorce (Nolo 2006),” spells out exactly what a divorce mediator does and the pros and cons of getting involved with it over divorce.

3. The Web site of AfriendlyDivorce.com offers articles that offer tips on mediation versus divorce, 10 tips to handle children.Also check out Web sites of www.smarterdivorce.com, which offers articles on mediation, and nolo.com, a legal publisher, which has background material on divorce mediation under the heading family law.

About the author: Gary M. Stern has co-authored “Minority Rules: Turn Your Ethnicity into a Competitive Edge (Harper Collins 2006),” aimed at helping minorities climb the corporate ladder.