Considering Mediation for Your Divorce? My Top Three Tips

Hello 2019! A new year for us all and a fresh start for many. January is one of the busier times for family law attorneys, as the revelry of the holidays has passed, children head back to school and the new year’s resolutions kick in. People are ready to turn over a new leaf or get down to business. This may include initiating or making progress on a family law matter. Exploring mediation for your divorce is advisable. Mediation can be the kinder, gentler approach, as well as the more economical one in finalizing your matter. For certain, there are many benefits and some pitfalls, too, to this popular out-of-court option. I want to share my top three tips to start you on the road to success in using mediation for your divorce.

Tip #1: Obtain several referrals for family law mediators from trusted sources and then do your homework.

Although emotions may be running high, selection of the mediator is often the first joint decision you make with your soon-to-be-ex-spouse. Yet, one size does not fit all. Wide variability among mediators exists in style, training, philosophy, experience, and practical “hands-on” skill in the art of negotiation. Get multiple referrals from people who had a good experience in mediation and from attorneys in family law or other related fields.

If you are facing a family law dispute, the task before you is daunting. While it may feel easier to hire the first (and maybe only) person referred to you, avoid making a snap decision or not doing some due diligence. After all, you are new to this process and would have no reasonable basis of comparison if you do not investigate your options.

All mediators are not created equally so interview at least 2-3 before deciding. Understand that because mediators are inherently neutral, they will typically not meet you or have substantive conversations outside the presence of both parties.

Once mediation for your divorce begins, frequently mediators work to make joint decisions regarding finances or custody rather quickly to achieve common ground and build trust in the process. While speed and efficiency are two of the primary benefits of mediation, once the process has started, it can be very challenging and/or expensive to change mediators. It is far better in my view to have a comfort level on the front end and select the right professional from the beginning.

Tip #2: Obtain a family law attorney for “as needed” consultation.

Use them early and often throughout the process for your own education and to help you make smart decisions in mediation.

Understand this critical fact right from the start: your mediator will not advocate for you or represent your interest in the divorce. Your mediator will facilitate obtaining an agreement (on issues big and small) between you and your former spouse. Creativity abounds and the law may be only a guide. Consultation at the outset with your own attorney who understands your objectives (and your blind spots) is well advised.

There is a push to make early, preliminary agreements in mediation that can be very difficult to “undo” down the road, even though the ramifications to you were not fully understood at the time. You can lose goodwill or damage your credibility by even trying to re-visit agreements you made when you were only vaguely knowledgeable about what the law provides or what would serve your best interest.

I see this scenario all too often in my consulting cases when “turning back time” on unfair preliminary agreements (whether made in writing or not) is very tricky or not an option. The problem I see is that people often wait until the “the end” of the process or after significant momentum has been built to utilize their consulting counsel. Many people do not want to incur the cost or upset their former spouse by obtaining a side consultation (and this goes double for those cases where there is an imbalance of power or control issues). Finances may still be merged and the fact that you are obtaining a private one-on-one consultation with your own counsel may not be so private. However, understanding what the law provides is your right and evaluating your best-case and worst-case scenarios with a trusted advocate consistently can only serve your interest in the long run.


Tip #3: Understand you will be compromising.

Mediation is not for everyone, but it is for those who seek privacy and a “bipartisan” and fair result at hopefully a lower cost. Many people report a greater sense of satisfaction and buy-in to mediated settlement agreements. Yet, understand that you will be asked to make a series of compromises, both big and small, to serve the greater good – an out of court resolution to your dissolution.

Determine what your goals and non-negotiables are at the beginning. Because mediation is confidential, you will be able to explore the give-and-take process freely. In the end, you must weigh the pluses and minuses of the decisions reached.

Considering mediation for your divorce can be one of the best decisions that you will make during the process. Use the tips above to help make it easier for yourself and your entire family.