Understand Mediation and Respect the Process

Aug 5, 2021

In a recent consultation, a new client told me he had been advised by two different attorneys to steer clear of mediation. While I didn’t probe too deeply, it seemed that the attorneys thought mediation would leave this client unprotected and vulnerable to being taken advantage of by his spouse.

I appreciated that the client chose to explore mediation as a process option in spite of being advised otherwise. At the same time, I struggled with hearing (not for the first time, and probably not for the last) about an attorney speaking negatively about mediation.

There are quite a few divorce attorneys who also present themselves as “mediators,” some with extensive training and experience, and others, perhaps not as much. I have thought for some time that the undeserved negative reputation ascribed to mediation by some attorneys is diminishing. Admittedly, as a mediator who has great passion for my work, these negative statements feel disrespectful to all of us who seek to help others come to their own resolution on their own terms.

I believe that attorneys who speak negatively about mediation either don’t understand the mediation process or perhaps don’t even want to understand the process, as they would prefer to step in and “protect” you and even “save” you from making your own decisions that they don’t agree with.

From a pragmatic perspective, I believe that attorneys who speak negatively about mediation either don’t understand the mediation process or perhaps don’t even want to understand the process, as they would prefer to step in and “protect” you and even “save” you from making your own decisions that they don’t agree with.

I would be the first to say that a divorce is a significant life-changing event involving strong emotions that can leave you vulnerable. However, the mediation process can and is structured to protect you while also allowing you to engage in a conversation with a-soon-to-be-ex-spouse in order to plan for separate lives and possible co-parenting. All the clients who have come into mediation with me after beginning a litigated divorce have told me that their litigation lawyers discouraged them from talking to their spouses. How are solutions to be found when there is no conversation? The unfortunate answer is that other people make those decisions for you, and the lawyers (and, in the most contentious cases, the judge) control the process and the outcome.

As a mediator, I must remain neutral, which is not the same as being uninvolved in providing a safe and calm environment for informed decision making. These are some of the principles to which I adhere, serving to protect you as a client engaged in mediation:

1. Encourage legal support—Family and divorce mediators have an ethical obligation to encourage mediation clients to seek out legal advice. This may include a consultation with an attorney before the mediation process starts, during the mediation process, and/or after the mediation process ends for purposes of reviewing the documentation of agreements. In some cases where a client may feel particularly vulnerable, attorneys are present (and appreciated by me) in the mediation sessions. However, I also believe that you have the right to decline any kind of legal advice and rely upon your personal sense of equity and reason to make your own decisions.

2. Promote informed decision making—Whether you have an attorney or not, I provide legal information to both of you, so you can be aware of the laws that apply to your circumstances. You may already have received this information from your attorney; I just want to make sure. Full financial disclosure of all sources of income, assets and debts is also a MUST in my process. This ensures that all of us have the same financial knowledge.

3. Invite balance through appropriate questions—A fundamental process goal for me is making mutually acceptable decisions. If I sense that this goal is not being met in the mediation process, I will ask questions that are focused around the reality of what is being decided—i.e. why do you think this acceptable to you/them? How is this going to work?—so that both of you can consider if a decision is really right for you.

It may be true that a litigated divorce can result in one spouse or the other getting more money, support or parenting time than what might be negotiated in mediation. To the litigator who promotes this concept, I would ask two questions: (1) can you guarantee it? and (2) what will it cost the client in time, money and anguish?

This you can count on: In mediation, you can be assured of a timely process, cost effectiveness, a safe environment and a result you control.