When does mediation make sense and how should you use it? So mediation is a process. A mediator can be an attorney; it can also be someone who is not an attorney. There are therapists that do mediation, there are accountants types, financial types that do mediation. So the first thing is making sure you have the right kind of mediator and it really depends on what you’re arguing about.
So if you are arguing just about financial issues, using someone who is a financial specialist in divorce as a mediator might be a great thing to do. If what you are arguing about is the children and psychological issues involving the children, then having a mediator who is a therapist might be a good choice for you. If what you’re arguing about are a lot of legal issues like child support, maintenance, parenting time, but less psychology, just arguing about parenting time, then you might really want to look for an attorney mediator. An attorney mediator also, at least some of them, will be able to draw up your documents at the end for you and can therefore do the legal work associated with finishing up the case as well.
So step one is looking for the right mediator. Step two is determining what kind of county are you doing your divorce in. Some counties require mediation, so you have to do mediation before you go to court anyway. If that’s the case, either you find the right kind of mediator for you, or if you know that there’s no way that you’re going to reach an agreement in mediation, then you might want to look at one of the mediation services that are less expensive, because you know you’re going to go in and it’s not really going to settle in mediation. So you don’t want to spend more money than you’d have to since it’s required in your county. So that’s number two: is the mediation possibly just to get through the process, or is the mediation something that might really resolve in the case?
Step three is determining when to do mediation. As I said in the first section, you don’t do mediation until you are clear that you know what all the issues in the case are, that you’ve done all of your financial disclosures. I would even have a spreadsheet of what all the assets and debts are so that when you go in to mediation you know you’re working with the facts. Once everyone agrees these are the facts, then you have a better shot of actually succeeding in mediation.
You also have mediation services that are run by former judges. In our firm, we often use these mediation services because the former judges are very, very good, quite frankly, at succeeding in mediation.
The last point that I want you to understand about mediation is that the mediator’s job to help you come to an agreement. This person’s job is not to advocate for you, and you have to be careful, especially if you’re in a situation where the power struggle is uneven (where one party has a lot more power, emotionally and financially than the other party has).
Mediation can be bullying in that situation, and its very important to have an attorney, in my opinion, representing you so that when you go in to mediation, you’ve equalized the power situation and you can come to a resolution that isn’t a bulldozing type of resolution. So, know your situation, know where your power level is with the other side, and choose whether mediation can be just the two of you with an attorney mediator. Or you may really need to have an attorney backing you up, doing all the pre-work and prep work and coming to mediation prepared to have your back essentially in coming to an agreed upon settlement.