Is a Mediator the way to go?      A divorce mediator is simply a neutral third party who will try helping both of you negotiate the terms of a divorce through mediation. Divorce mediation can be an attractive alternative if both you and your spouse seek to avoid an adversarial conflict in the courtroom.  There are a number of reasons why this can be a beneficial approach.  Before we get into them, keep some things in mind.  Everyone must work together on this option.  It can only work if both spouses make it work.  Namely mediation can save both of you a lot of money and heartache and oftentimes means more control in the process for you and your spouse.  In contentious and adversarial divorces, which typically are less common than you might think, everyone comes away feeling beat up and dragged through the grinder.

     Many of the tips for finding a good divorce lawyer will also apply to finding a good divorce mediator.  Divorce mediators don’t have to be lawyers either.  They can be therapists or even religious ministers.  However, think twice about a religious mediator as chances are they may want to intervene to save the marriage as may a therapist as well.  A noble idea, but if you are serious about ending the marriage, then there are legal and financial obligations that have to be dealt with head on without an added agenda by a third party religious-oriented mediator.  There can also be a divorce mediator acting between two divorce attorneys in separate rooms with their clients.  In our opinion, such arrangements tend to be problematic and more time consuming but in rare cases may be necessary if there are issues with domestic violence or if the spouses want to resolve it and save time but can’t stomach the thought at sitting at the same table.  Remember the heart of any mediation is cooperation among all parties.  That is the hallmark of divorce mediation – at least the ones that work well.     

Some things to expect if you choose Divorce Mediation

     Keep in mind that a good divorce mediator is not trying to save the marriage. You need a marriage counselor instead if you and your spouse think it could be worked out.  We are assuming at this stage of the game, that is not a possibility.  Additionally, we are presuming that ending the marriage is inevitable and it is only you and your spouses desire to do it as amicably as possible.  If that is the case and you are ready to enter mediation, be prepared for the following:

     A mediator acts a “go between” and is neutral.  They will not make decisions about who was right and who was wrong.  That is not their role at all and you should not expect them to do so.  In fact, you are undermining the mediation if you insist on delving back into the blame game.  The blame game is over.  The marriage is over.  How should it be best dissolved is the goal, without involving a conflict.  You need to take that approach to make mediation successful.

     Don’t expect any free mental health sessions either or other forms of counseling or therapy be it financial or marriage related.  Mediation does not replace the need for those services if there is still a need for them at this point.  It may be that you need some counseling when it is all said and done, but any such counseling is beyond the scope of mediation. 

     You can leave if you want at any time.  All parties should realize that any mediation is founded on the good faith of all those involved.  If for whatever reason, you don’t like how it is going, you are free to go.  Likewise, a mediator can do the same if it turns into a fight.  There is nothing binding about any mediation at any point whatsoever until a settlement of some sort is signed by all parties. 

     Be prepared to state clearly what it is that you want and need. Do your deep thinking before mediation while you are not being charged by the hour.  Now is not the time to give these matters serious consideration.  Make your needs concrete and clear before hand.  After all, you will be paying a mediator while they help you through this process.  Prior to the mediation, we suggest using the SMART approach to goal setting.  SMART goals are Specific Measurable Attainable Realistic and have a Time element.  For example, be clear and identify things you think you should get.  Saying you should get the car is specific.  Ask yourself if it is attainable?  Asking for all of the cars is probably not realistic, so why waste everyone’s time.  You get the point.  You can use the SMART yardstick with many of your mediation goals you hope to achieve.  Lastly, in the spirit of mediation, try to be as fair as possible.  A mediator means willingness on both parts to try and see the other’s needs. The closer you are to asking for something fair, the quicker the process will go and the easier it will be for both. 

     Sometimes the mediator may want to speak to either of you individually during mediation.  In so many words or another, such procedure is called holding a “caucus.”  It may be that the mediator may want to clarify a point to each of you individually or you are unsure about something he or she has proposed.  This is not at all uncommon.

     The mediator will slowly work toward some kind of draft settlement.  This is essentially what you and your spouse are in agreement on.  It is customary for this to go through many changes.  Usually, at the end, when all parties are satisfied, the settlement will be signed by all parties after the mediation.  You don’t necessarily have to agree to sign the settlement there, neither does your spouse.  You can have an attorney look it over and so can they.  Or, it may be that you can sign it right there; whatever makes you feel more comfortable.  Once you sign it, then it is binding.  So if you don’t understand something, get it explained by the mediator before you sign the settlement.

     Divorce mediation is still a difficult process.  It may be tedious and there will be many issues to slog through and resolve to the mutual satisfaction of both parties.  This takes patience.  Get in that mindset right away. It can be complicated when it comes to resolving financial matters so make sure you ask every question you want and that you are completely satisfied before moving on to the next item during the mediation process. Even though you may want to get through it as fast as possible, be patient. 

     Expect to be honest and communicative during the mediation process.  Additionally, expect the mediator to maintain client confidentiality about all mediation sessions.  The mediator should be obligated not to share individual conversations with the other spouse unless given permission from you.  It is customary that this confidentiality policy should be stated by the mediator prior the start of mediation.  The only exception to this confidentiality would be if one spouse indicated the other could be in danger or is threatened in some way and vice versa.   

     In the end, divorce mediation means cooperation between you and spouse.  That might be easier said than done, but keep in mind: you each will have your own interests to protect and perhaps mutual ones as well, such as your kids.  Mediation is not fixing the marriage; it is ending it in a more amicable manner.  Don’t go the route of mediation if you want to save the marriage. Conversely, don’t go this route if you want to destroy the other person economically somehow either.  Mediation is about agreeing to some ground rules, cooperating in an honest manner and letting a divorce mediator “lead” both of you to piece of mind and a settlement both of you can live with.  By doing so, you may save both of you a lot of anguish, time spent in court and a more satisfying experience (to the extent that a satisfying experience is possible in any divorce).  In all likelihood, by choosing a divorce mediator you will be less likely to revisit a courtroom later and fight over compliance of previous property rulings, alimony payments or visitation and custody rights.  By choosing mediation you are choosing the less contentious divorce route and ultimately you have more control.  That control can mean all the difference.