Issues to consider about divorce mediation

When and if divorce mediation results in an agreement or settlement, the mediator has the power to make it legally binding. In the case of family law divorce mediation, there are issues, listed below, that you should consider.

If our lawyers are settlement-minded, why see a mediator?

Isn't mediation just another form of dual representation?

Can mediation help vindictive and uncooperative couples?

How do mediators justify their fees?

How can they help if mediators should not give legal advice?

If both lawyers are settlement-minded, why should we spend money for yet another professional and hire a mediator?

If the lawyers can work together and settle the case quickly, amicably, and inexpensively, perhaps mediation is not needed. Quite often, being an advocate causes a lawyer to respond aggressively or initiate preemptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and play a meditative role at the same time. Also, when lawyers do most of the negotiating, the parties do not communicate directly to make their own agreement, which may also improve their interactions down the road. Using a mediator might be like taking out an insurance policy to maintain an amicable situation among all parties and counsel. It also affords the family the benefit of a trained innovative problem-solver. Finally, it has been suggested that the use of mediation can be a transformative experience that may actually improve the interaction and lives of the family members instead of just putting a settlement bandage on family dysfunctions.

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Isn't mediation just another form of dual representation, with all the limitations that such conflict situations carry?

It is true that in preventive mediations involved in premarital agreements, adoptions, and putting together a family business, the mediator's role of putting together and building harmonious relationships seems very much like dual representation (Section 2.2 of Model Code of Professional Responsibility). Unless there is a written waiver from all parties, a single lawyer must withdraw from representing two clients when conflicts appear irreconcilable. Conflicts, real or apparent, are generally present in virtually all dual representation situations.

As a neutral third party, the mediator represents neither party. This may be clearer in the mediator's role of dispute resolver and case manager than it is in preventive mediation. The new Model Standards of Conduct for Mediators promulgated by the ABA, American Arbitration Association, and Society for Professionals of Dispute Resolution encourages all parties in a mediation to consult independent counsel. In many mediations, counsel attend sessions with their clients and participate at the mediation table.

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Can mediation help even between couples that are bent on being vindictive and uncooperative?

Since over 90 percent of cases settle, the issue isn't whether it will settle but when, how, and with what transaction costs. Many jurisdictions now have mandatory mediation on both parenting and economic issues. In litigation horror stories, lawyers are often the victims, left with lost stomach lining, unsatisfied clients, and unpaid receivables. A major, but less-known function of mediators is to provide consensual case management that can impose some structure on the chaos and still give lawyers the freedom of traditional advocacy that judicial case management can take away.

How do divorce mediators justify their fees?

Some divorce mediators may overcharge, and others may not produce a process or a result that is worth the expenditure. However, even with the use of a mediator and independent consulting lawyers, the cost of a mediated divorce may actually be far lower than a case directly negotiated between two adversarial lawyers. It is certainly lower than litigated divorces. Even co-mediated divorces do not increase fees compared to negotiated divorces, and parties may have the benefits of an interdisciplinary (lawyer/psychologist or lawyer/CPA) intergender team that can often bring settlement faster and more comprehensively than working with a sole mediator.

You are correct that a neutral mediator should not give legal advice - that is, tell the client what to do or what decisions to make. However, mediators differ in the amount of legal information that they provide. Even if a divorce mediator does give legal information (cases, statutes, tax laws, procedure, support guideline calculations), most clients benefit from individual legal advice and negotiation coaching from an independent family lawyer. If you have questions about divorce mediation, contact a local meditor.

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