Articles on Divorce: General

A mediator is an independent and neutral third party who works to help clients resolve issues without going to court. During the course of my practice as an attorney and mediator I have had the pleasure of working with attorneys and mediators who are exceptional as well as the frustration of attempting to work with some who should consider other work. I am not gifted in math therefore I find it ironic that one of the classes that had the most impact on my view of the world is statistics. I believe in the "bell curve". There are a tiny percentage of folks in every profession and vocation who are at either end of the curve, those who are exceptional and those who are less than competent. I hope that the following will help you find a mediator on the right side of the bell curve and right for you and your partner.

Education and Training

Currently there is no law requiring an individual who wants to call himself/herself a mediator to comply with any particular standard. As a consumer and a professional I find this to be a serious problem because there is little standardization which causes confusion. To practice law, I had to attend law school for three years after earning my bachelor's degree and then pass a three day state examination called the bar exam in order to obtain a license to practice law. I took courses in mediation and other alternative dispute resolution courses while in law school at Pepperdine University, as well as other programs in mediation after law school. I am also required to take continuing education courses in law in order to keep my license active.

There is no exam or license required to be a mediator. Your hair stylist could decide tomorrow to become a mediator, get business cards and propose to you that he/she handle your divorce. The stylist would not be breaking any law in taking your case, but you would be in serious economic and emotional peril by entrusting him/her with your case. Worst yet, since there is no license required if the stylist were to botch your case there isn't a regulatory board that would take any disciplinary action against the stylist and you would be in the unfortunate position of trying to sue the stylist for your loss.

If you were very lucky your stylist might have thought to carry liability insurance for his/her work as a mediator but that is not required either. Even if you win a lawsuit against your stylist, as the old adage states, "Go collect"! Clearly, it is very important that you thoroughly explore the qualifications and experience of any mediator before you allow him/her to assist you with pivotal decisions which will have long lasting impact on your life.

There is a philosophical split between folks who believe that mediators should have knowledge of the law and those who think that anyone who is taught to mediate could do an adequate job without knowledge of the law. I am an attorney and that causes me to be very concerned by mediators who mediate family law matters without knowledge of the law and without using consulting attorneys. Decisions made by parties in family law matters can have repercussions that last a lifetime. While there are competent mediators who are not attorneys, do make certain that you are aware of your legal rights before beginning mediation or at minimum have your agreement reviewed by an experienced attorney prior to signing it. Divorce is a legal process which requires that certain documents be completed and filed with the court. If the legal process is not followed your divorce may be set aside causing you to have to go through legal proceedings to correct the problems caused by not following the legal process. In other words you may have to go through your divorce twice if it is not done properly the first time.

There are mediators who have substantial training such as a master's degree in mediation. Some mediators come from the behavioral sciences and are very skilled particularly in helping families with parenting issues. You should inquire about the mediator's training and experience prior to hiring him/her. I offer a thirty minute complementary Introduction to Mediation appointment so that couples may learn about mediation and decide if it is appropriate for their situation.

Communication

If you have ever been mystified by the babble coming out of your doctor or mechanic's mouth you are aware that all professions and trades have their own language. What some folks in the service industry fail to understand is that if I am paying for a service whether medical or automotive, I am entitled to the service provider's best efforts to help me understand his/her lingo.

Helping me to understand the problem and the possible solutions is part of the service for which I will be charged handsomely.

A good mediator should be able to communicate clearly to the potential clients the process of mediation as well as the process required by California law to complete the dissolution (divorce) or other family law matter. Equally as important, the potential client should feel that the mediator is focused and listening to his/her needs and concerns. Family law matters require that the clients share rather personal information about their finances and their families, the mediator should inspire trust so that the client will be open to sharing important facts, feelings and solutions. It is essential to find a mediator who makes you feel comfortable talking to him/her.

Experience

Generally, the more you practice the better you become unless you have been doing it wrong all along. Be concerned if your mediator is very inexperienced, has little training or on the other hand if the mediator is "burned out" and acts as if he/she could handle your case while sleeping and seems bored by the process or rushes you to solutions he/she has generated without much deliberation or input from you. Asking the mediator how many cases he/she has mediated successfully should give you some indication of the experience level. If your case has any particular issues that you think will require special training or knowledge, ask the mediator about experience dealing with that type of issue.

Style

There are about as many styles of mediation as there are mediators. One retired family law judge I met mentioned to me that because of his experience he was much more likely to move very quickly to the solution phase of the mediation than other mediators. By his own admission he was far more interested in the solution rather than the process. His sense was that his clients basically wanted him to tell them what a "judge" would say so that they could evaluate their position and adjust it accordingly. A different "transformative" mediator I know feels that it would be completely presumptuous and inappropriate for him to find answers to his client's issues. Despite the fact that he is a graduate of Harvard law school and one of the wisest men I have ever met he does not view his role as a mediator as one where it is his job to tell his clients what to do.

He feels that the whole point of mediation is for couples to find the answers themselves with the mediator acting as a facilitator in aiding the couple's communication. Yet another mediator I know of is very directive with clients. This mediator feels that as long the parties agree to a deal there is no duty to see that the "deal" is fair or equitable. There are mediators who are very willing to discuss feelings in depth and those who don't want to talk about feelings at all.

You and your partner need to evaluate the mediator's style and decide whether it is compatible with your own. Regardless of the mediator's style he/she should be neutral. It is not the mediator's role to be your advocate. If at any time during the interview or the mediation process either parties feels that the mediator is being biased it should be pointed out to the mediator so the issue can be addressed.

I think it is important to provide mediation clients with general principles of law. It is essential to me that the mediation process as well as the agreements reached be fair and equitable. That does not mean that someone can't be generous. Most people are far more likely to commit to a solution and follow through with promises made if they helped to create the solution. It is always easy to come up with creative ideas to my clients' issues. It is far more difficult to provide a process that allows them to reach their own conclusions. I do assist the parties with possible scenarios or alternative solutions for their consideration. I will contribute ideas for problem solving if my clients are stuck and can't seem to generate options but I will present those options as only possibilities for their consideration and not my recommendation. I must keep the power with the parties and equalize the power between the parties when necessary. I feel that there has to be some discussion of feelings or else the couples will be unlikely to move forward in the mediation process. Mediation is not therapy and spending too much time on feelings with a mediator is a misuse of your investment in mediation. Working with a mental health professional is a far better way to address your emotional needs.

Team player

No man is an island and neither is your mediator. Beware of anyone who claims to have all the answers. Everyone has their strengths and challenges. Your mediator should be able to recognize when other professionals need to be consulted.

Depending on your particular case and your mediator's background, you may need the services of other professionals to assist you with your family law matter. You may have a need to retain the services of a financial professional to help you with generating options for dividing your assets and liabilities, or to help you budget as a single person or for other financial planning. There may be a need for mental health professionals to assist the parties and/or the children. During divorce mental health professionals can assist you as coaches and child specialists to address the emotional impact of divorce on you and the family. You may need a valuation of a business, property, pension plan or other asset. Your mediator may need to work with other professionals and be open to their thoughts and ideas in order to help you and your partner. Choose a mediator that is open to input and solutions generated by others and recognizes the value of the service of other professionals.

Independent Counsel

The mediator works as a neutral which, as discussed above, means that he/she is not to advocate for either party. For that reason the mediator should recommend that each party go to an attorney to review the agreement. The attorney's role in that instance would be to make certain that you understand the terms of the agreement, that you have entered into a fair and equitable deal and that you are aware of your rights. The attorney may come up with some ideas that you will want to discuss with your spouse and the mediator before you sign the agreement or Judgment. I can not stress how many people waive rights they didn't know they had. I urge you to consult with an attorney prior to signing any agreement. It is one thing to be generous and quite another to be foolish.

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