If you’ve decided that mediation is how you’d like to get your divorce resolved, the next step is selecting the mediator. Here are some tips on things to think about in making that selection:
1) What is the mediator’s background?
A divorce mediator could be anyone as anyone can call themselves a mediator. It’s not like being a lawyer where you have to get a certain degree, pass a test, and do certain units of continuing education. Because of this, it’s really important to find someone who knows what they’re doing.
2) How much family law experience does the mediator have?
Having some expertise in family law is pivotal. This will ensure that the mediator can explain the law, understands how to complete necessary court forms, knows how to draft the Judgment (the document that will get you divorced and will contain all your agreements), and can give you some real-life examples of things he or she has seen happen in court or in settlement. One of the greatest gifts a divorce mediator can give to the parties is knowledge; Knowledge of what are the pros and cons of certain custody schedules. Knowledge of creative ways to craft support. Knowledge of the most efficient way to divide up retirement plans.
Someone who practiced family law will likely have a whole lot of examples of what works and what doesn’t work.
3) Does the mediator draft the Judgment for you?
If you have the mediator draft the paperwork for you, which many mediators do, you want to make sure they can properly draft a document.
A lawyer who has experience with divorce litigation likely knows how to clearly draft a Judgment. If someone has never practiced family law, they may not know how a good divorce attorney can pick apart any vagueness in drafting or what could make an order tough to enforce. You may not be thinking about what will happen later on if someone wants to modify child custody or support but your mediator should be. And they should be drafting your Judgment accordingly.
4) How much training does the mediator have?
It also probably helps if your mediator has done a decent amount of mediation training, specifically. It could be a few courses, it could be they hold a certificate (requires a certain number of courses), or that they hold a Masters degree in ADR (requires even more courses). The more tools they have in their tool belt to pull out and try to rein people back in when mediation gets tense, the better. And because this is divorce mediation,it’s highly likely that things get tense. So make sure you have an experienced guide to get you back on the right path.
5) What is the mediator’s style?
Some mediators are facilitative, focusing on the process. These facilitative mediators control the process, while the parties control the outcome. Facilitative mediators typically don’t make recommendations and instead ask questions like, “What do you think?” and “How does that make you feel?”
Oftentimes, mediators with a strong therapy background will fall into the category.
Pro: People feel “heard” and choose their own outcome.
Con: It may take a while and may not be great at educating people on the law for people who don’t have outside legal assistance.
Evaluative MediatorsSome divorce mediators are more evaluative. Evaluative mediators control the process and impact the outcome by voicing the mediator’s thoughts. A true evaluative mediator will tell the parties his or her opinion, predict what may happen in court, and advise as to the pros and cons of each side’s position on an issue.
Mediators with a legal background tend to fall into this category. Evaluative mediators tend to guide the parties towards an outcome more so than in a facilitative model.
Pro: It can be very efficient to have someone with experience tell you what they think sounds “fair.”
Con: A person’s opinion may not jive with what your family needs.
Transformative mediators are somewhat similar to facilitative mediators in that they are very focused on the parties needs and points of view. In a transformative mediation, the parties control both the process and the outcome. Transformative mediation is very focused on how people in conflict interact with one another and bringing empowerment to both parties.
Pro: It can really help people deal with one another on a long-term basis (particularly people who have children together).
Con: You may better deal with one another, but you may not have any agreements on custody, support, or property division because those weren’t the priorities in the mediation.
Divorce mediation is different from many other legal mediations given the emotions involved. A combination all three types might be the right combination. A trained mediator can go back and forth, being facilitative when needed, evaluative when the time is right, and try to be transformative all at the same time.