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Tuesday, December 8, 2015

How Does Divorce Mediation Work?

I practiced divorced mediation, in Illinois, from 2009 and until this Summer. I enjoyed helping people work through disagreements and conflict. I have ceased providing mediation services in order to focus on other areas of practice, specifically on the front-end, pre-marital therapy, in order to help new couples prevent divorce.

In this post, I'll explain my perspective on mediation with the hopes that it will help you understand it and get a better idea if it's something that you should try. In my experience, most people did not understand the role of the mediator or the purpose and limitations of mediation; and, in many cases, people described situations where mediators had performed duties that were questionable and charged fees that were unreasonable. 

Divorce is expensive. Most Americans will spend between $10,000 and $30,000 from start to finish. Divorce is stressful**. Many spouses will feel anxious or depressed for months to years afterwards; most children are negatively affected by divorce for two years on average. Divorce is time consuming. The average divorce will take 1.5 years from start to finish and others will drag on for 3-4 years (see this post: http://thementalhealthreview.blogspot.com/2012/10/divorce-in-slow-motion-how-to-live_25.html).  


Trying to resolve disagreements at home can be
unproductive and intolerable. Mediation offers
a safe and calm environment with the guidance
of a professional.


**Divorce, per se, is not bad. It's full of pros and cons just like any other change in our life. Bad divorces happen when one or both spouses act badly. For example, one spouse will usually be angry at the other, and they get on their high horse, feeling full of self-righteous indignation, and they punish their soon-to-be former spouse. They are the ones who will often cut off their nose to spite their face; they give divorce a bad name; they are the ones who will put their kids in the middle or throw their former spouse under the bus; they will air dirty laundry on social media, in attempts to shame their spouse. These are mostly good people who behave badly because, under that anger, they are very sad. 

The right thing to do is get help dealing with the intense sadness. 
Anger is destructive. It's probably what drove your spouse away to begin with, and displaying more anger is only proving to them that
they made the best decision. 

The primary reason divorce is so expensive isn't because of lawyer's fees, it's because of angry, self-righteous, indignant spouses. If you're like this, then mediation probably isn't for you.

Most couples will let their attorneys "fight it out" in court, trying to get as much as they can for their side. It's an antagonistic process for which mediation is one of several alternatives.

Divorce mediation was developed to for two reasons, first, to provide couples with an alternative dispute resolution process. Divorce is the ending of a contractual agreement ("marriage") between two people where property was to be jointly owned and to be passed down to their children. The dispute is about how that property should be divided. Mediation was also supposed to be less expensive. However, today most attorneys have become certified mediators and charge just as much for mediation services as legal fees. So, you should shop around for the best price; don't assume that you get what you pay for. Mediation does not require a lot of training. Many non-attorney mediators charge large fees only because they know that couples must attend because it's ordered by court, or because of a false prestige associated with the legal aspect of mediation.

There are some important facts to understand about mediation. Most mediators are social workers, lawyers, counselors, pastors, former educators and judges. Even if your mediator is a lawyer or former judge, they are not permitted to give legal advice to either party during mediation or through the divorce.


Being an attorney does not make someone a
better mediator. The mediator's skill-set is
quite different from a lawyer's skill-set.

A mediator represents the couple, where an attorney represents only one party. Also, the role of the mediator is not as proxy, referee or judge. Mediators will know and understand divorce laws, but they cannot tell you what legal action you should take with regards to your divorce; in other words, they should not apply the law to your case or make legal predictions, but they may advise you to consult with a lawyer, or ask you to follow up with your lawyer regarding specific issues.

How can mediators help you?


Mediators can do the following:


1. Provide you with a safe and relaxed environment to resolve disputes. Compared to court rooms, a mediator's office should feel more like your living room, with a comfortable couch to help absorb some of that tension. It's also private, unlike a courtroom where all kinds of people can watch and listen to your personal affairs.


2. Offer an objective perspective from an impartial position. Lawyers are looking to "win" a fight, mediators are wanting to facilitate understanding and mutually acceptable decisions or compromises.


3. Mediation can help you save lots of time and money. Mediation can be as low as 10% of the cost of a typical divorce.


4. Mediation will teach you to resolve disagreements with your former spouse or partner and build skills and confidence that you could do so again in the future, if needed. You will learn communication techniques that you can use independently. The goal of mediation is not to build dependency on the mediator, but to help you learn to independently resolve future disputes. However, you're free to use a mediator if you are at an impasse at any point in the future.



______________

As a mediator, I would try to make the cost as low as possible. I usually had one initial session for one hour in order to assess the situation and determine a course of action. Many times, the problems are resolved in the first session, if you're coming in with one problem. At the first session, I will offer you options about how to move forward, and this will include making an attempt to resolve the disagreements independently. If that fails, then we can work together, and I will facilitate the process as much as necessary going forward.

I sometimes would meet people who have been to mediation and tell me that their old mediator made decisions for them and would write down decisions that were made. Mediators are not supposed to behave that way. Mediators may take notes for you, but they should give the impression that what they write has any legal standing. What is said in mediation is not admissible in court. Decisions that are made in mediation are non-binding; people are free to change their mind after mediation. Decisions are final only after you have a court order entered by the circuit clerk. So, I would not take notes or write down resolutions for you.


______________

Many people that come to mediation try to manipulate the mediator. Some people will try to taint the mediator's perception of their spouse, directly or implicitly. Sometimes people will be passive-aggressive, or try to signal to the mediator that they are a great parent and great person, or victim of their former partner's shortcomings. What these people fail to realize is that they are wasting their time. Mediators will maintain an impartial role regardless of what one spouse says or implies about the other or themselves. The mediator's role is just to facilitate mutually acceptable agreements - not to take sides or judge people they have never met. Mediators are sophisticated enough to recognize these behaviors and will usually ignore them. The non-manipulative party shouldn't worry that the mediator will be biased because of this kind of behavior. The mediator is not a moralizer or judge. They're an impartial, non-judgmental facilitator.

If you decide to try mediation, you will probably be screened for disqualifiers, first. For example, cases where there is domestic violence are often not appropriate for mediation. People who are actively abusing drugs or alcohol may not be able to participate in mediation, and people with advanced Dementia or who suffer from severe mental illness, like Schizophrenia or Bipolar disorder that is not effectively managed by medication may not be appropriate for mediation. 

With regards to fees, I do not think mediators should be charging more than $100 to $150 per hour, no matter how much education, training or experience they have, and I think they should provide a sliding scale based on ability to pay, for at least 10% of their clients. I believe this for the following reasons: (1) mediator skills are not esoteric or very complicated, (2) although helping distressed couples with a divorce is a stressful thing to do, the process itself is not very demanding, (3) the primary purpose of mediation was to open up competition in the market to bring costs down.

If you're shopping for a mediator, feel free to ask them any question you wish. Also, feel free to try to negotiate fees. Finally, don't agree to pay more than $20 to $25 for mediation sessions that were missed. Paying fees for services that were not received, regardless of the reason, is probably not enforceable in court. Ask mediators how their process works. If they don't seem to have a process, then you may run the risk of not making any progress.



Legal Disclaimer: The information included in this post and blog are for educational purposes only. It is not intended nor implied to be a substitute for legal advice. Scott Costello is not a lawyer and Personal Solutions Counseling is not a law practice. You have the right to consult with an attorney regarding your divorce at any time.

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