The idea of mediation in a divorce context can be confusing. In a divorce case, there are two types of mediation. The first type of mediation is when parties have exhausted all forms of negotiation and hire a neutral mediator to assist with reaching an agreement to resolve issues in a divorce case. The second type of mediation is when parties hire a mediator to assist them with the entire process of the divorce by being involved from the very beginning including assisting them in filing, negotiating a settlement, and drafting documents to be filed with the court on behalf of both parties. This is commonly referred to as a “mediated divorce.”
It is important that people understand the difference between the two types of mediation when contemplating divorce and whether or not involving a divorce mediator is appropriate in a given case. For purposes of this article we will focus on the second type of mediation which is mediated divorce.
Recently, many family law firms are trying to capitalize on the 2017 law change which allows attorney mediators to draft and file documents with the courts on behalf of a divorcing couple. Prior to the law passing in 2017, a mediator could work with couples in a neutral capacity to help them reach an agreement, but a mediator could not draft documents or file documents with the court for them. Since the law changed, couples can now hire one lawyer to draft necessary pleadings, file them with the court and work with them in a neutral capacity to reach an agreement resolving issues in their divorce case. The idea of wrapping your divorce up in a neat package where only one attorney is needed sounds immensely appealing. And, in many cases, a mediated divorce can work for couples. However, we have seen a substantial upswing in clients who start the process of mediation too early resulting in a failure of that process. They are uninformed because the mediator failed to require full financial disclosure or failed to draft Financial Disclosure Statements prior to starting the process of trying to reach an agreement. So, how do you know if divorce mediation is right for you?
Understand what mediation is and what a mediator can and cannot do for you.
A divorce mediator is neutral and does not take a position for or against either party or give legal advice to either party. As a neutral, a mediator can inform you of the law and provide calculations for support, property division, and other divorce related issues. A mediator can draft legal pleadings and file those forms with the court. As a neutral, the mediator works with the couple to help them reach an agreement. With the new mediation rules in family cases, a divorce mediator can also draft and file the legal pleadings with the court making it easier for a divorcing couple to navigate the court procedures.
But what happens if you have questions about whether the settlement agreement is a good agreement for you and your situation? What if you have questions about how the law applies to you alone and not the couple?
A divorce mediator cannot give you legal advice. Therefore, all those questions will remain unanswered because if the mediator were to answer them, he or she would be providing legal advice.
What if the agreement is not fair? How will you know?
Simply speaking, you won’t. The mediator is not able to advocate for either party. Therefore, absent having your own attorney, you will never know whether the agreement is fair to you or, quite frankly, could be better. Any suggestion by the mediator in this regard would be considered advocating and is forbidden.
Consider whether mediation is appropriate for you.
The goal of mediation is to facilitate a resolution of issues and a stipulated agreement, but how do you know if you can reach an agreement before you know what all the potential options are? Many times we see a client who thinks they have an agreement but as the mediator discusses different aspects of the process (i.e. placement schedules, custodial decisions, child support, tax deduction, maintenance and property divisions), more and more questions arise. Without the benefit of legal counsel to advise you, it is truly impossible to know if you have a fair and equitable agreement. If you have any questions, hesitations or concerns, it is imperative to speak to a lawyer before embarking on the mediation process or making any final decision in mediation. Even if you decide to hire a divorce mediator, you are still free to hire your own attorney to review your divorce agreement and discuss settlement ideas. Your divorce mediator should always support a party’s legal right to consult with or hire an attorney.
Research your mediator.
When the law changed in 2017, many law firms saw this as an opportunity to simply generate additional revenue for their firm. The tag line of an “easy” and “flat rate” divorce or mediation sounds appealing and draws the attention of many savvy consumers. However, mediators need to be experienced and properly trained. Simply because a law firm advertises “mediation” does not mean that the attorneys have the experience or training to successfully help you. The process to become a mediator requires hours of training and years of experience. Commencing the mediation process with the wrong mediator will all but guarantee that your experience will only be more stressful and expensive. When interviewing mediators, you should ask if they have taken the requisite 40 hour training program. Inquire as to the number of mediations they have conducted. Inquire about a mediator’s experience and years in practice.
Beware of motivations.
Very frequently, we hear that one spouse is pushing the other spouse heavily towards mediation. We have heard clients tell us that their spouse has threatened them that if they don’t do mediation and/or if they do hire attorney, they will not agree to certain things, it will cost them thousands of extra dollars or “it will be war.” This is typically because that spouse has the most to lose – for example, by having to pay child support or maintenance. Threats and bullying are never a good start to a divorce, no matter what process you decide to use. Keep in mind that your soon to be ex-spouse is not looking out for you. And, a mediator cannot protect you in that situation like an attorney can by giving you sound advice. At a minimum, you should consult with an experienced divorce attorney prior to entering into the mediation process so you have realistic expectations and knowledge of what you could be entitled to under the law. This will help you reach the best agreement for you and your children in addition to feeling comfortable when making that final decision.
Mediation with the right mediator can work!
When it comes to mediation to resolve an issue when there is an impasse in a case, mediation as first described above is an excellent option too.
In the right circumstances and for the right reasons, mediation is an effective tool to avoid litigation and ensure that both parties are satisfied with the result. There are very good attorneys and retired judges who are mediating that are experienced and charge reasonable rates. In these situations, you will likely be completely comfortable and satisfied with the process and the results. If you have any reservations, however, make sure you at least consult with an attorney as stated above.
Further, mediation is the preferred method of resolving disputes even when attorneys are involved. Experienced divorce lawyers will often reach out to mediators to help resolve a case prior to engaging in litigation. These mediators are either retired judges or attorneys who have been practicing for more than 20 years. The cost to hiring a mediator too early and without the advice of attorney may result in increased legal fees, but more importantly, can have a long term negative impact on you or, more importantly, your children.
Attorney Alison H.S. Krueger at Nelson, Krueger & Millenbach, LLC is a well-respected and trained mediator. Her primary experience is as a practicing divorce attorney, but she also engages in the mediation process where she deems it will be the most helpful. She also charges a reasonable hourly rate given her years of experience in this field. If you are interested in this process, please call us at 414-258-1644 to schedule a free consultation to discuss same.