Do we have to meet with you in the same room?
Do I need to retain an attorney prior to the consultation with the mediator?
Is this binding?
Do you tell us what is fair?
What happens if I can not negotiate as well as the other party?
Why would we choose you as our mediator?
How long is a mediation session?
How can we mediate when we can not communicate?
What if I don't understand our financial situation?
Why are attorneys required?
What happens if one person is controlling?
Not always. There are some cases where there are protection orders in place and obviously we have the requisite facilities in my office space to allow for that. The fact that a couple may be uncomfortable in the same room may not be a bar to having them in the same room. What I always say to parties is let’s try and have at least the consultation where they both come to my office to see whether this is something they wish to choose, not only the mediation process but me, I ask them to at least listen to what I have to say together. One of the reasons for that is I don’t want a situation where I have one person say “I heard this,” or “She said that,” I want them both to hear me speak at the same time because if they are both able to agree on the process and me that’s the first step for them in getting to a point in working together towards a resolution. I will always say to the parties that on at least one occasion I will put them in separate rooms and speak to them individually. I have to drive the process as I see fit on the day depending on the dynamic and the information I am given at the time.
The simple answer is no, no you don’t. Some people do have attorneys retained but some people do not. What I suggest is come to the consultation, find out what the process is about. I can refer you to different attorneys. I don’t get referral fees, this is simply a case of pointing you in the direction of a number of different attorneys who I would then invite you to go and interview. It is ultimately again in the same way that you choose your mediator you need to choose an attorney who is very capable, who has experience, who is not afraid of being realistic with their clients as to likely outcomes at Court, not simply saying to their client what they want to hear, but also to have an attorney who is comfortable in this setting.
Many of my clients are concerned that they will come into a mediation, reach an agreement, walk out the next day, and change their minds. It is fair to say that everyone has buyer’s remorse the next day, both parties and that really is the key, both parties have buyer’s remorse. And the reason for that is because both parties have had to give something up during the mediation. You must come to mediation in good faith and good faith means both parties are willing to negotiate. It is not simply laying down a line and saying you either accept this or it is over. The reality is this, there are lots of checks and balances that we have in place to ensure follow through. Firstly, we obviously have the attorneys involved so that people are making decisions that are informed. Informed in the legal environment. Second of all, we have the mediator present who will ensure that notes and a Memorandum of Understanding is drafted, which is what the terms that are agreed between the parties. Thirdly, we have what is called a Signing Day. I created the notion of a Signing Day because I was noticing that there was a lag between when the mediation happened and an agreement was reached and when the actual order was entered with the Court. So in order to keep everyone on a timeline, not just the attorneys but also the parties, we introduced what was called a Signing Day. So from the day of the mediation, typically four or six weeks later, we will have a Signing Day. I would have asked the attorneys to have drafted, usually the first draft within seven days or ten days thereafter, and for the other attorney to review seven days after that. And then we will have a Signing Day where the parties will actually come in here and there won’t be a rehash of what the agreement was, there may be a few tweaks on the actual verbiage, but there will be a day where they actually sign and we will then set up a date for the Prove Up date at Court which can be usually one, two, or three days later. The importance of having a Signing Day is making sure that everyone is accountable and there is something to be said for actually people having a date to work towards. Like with any profession, when people have a date to work towards they are much more likely to do it in a timely manner. As the mediator, I work for the clients not for the attorneys and my job is also to be the voice of the clients ensuring that the attorneys are accountable to that timeline. So part of my job is to ensure that if you sign up for this process that I keep the momentum going. When the document is signed, it is then entered in Court and is binding.
It doesn’t matter. And the reason it doesn’t matter is because what I think is fair is irrelevant. Indeed, even what one party thinks is fair is irrelevant. What we are looking towards is getting to an agreement that both parties can live with because if mediation is trying to convince your spouse that you are right, when perhaps you have been trying to do that for years, it’s not going to work. The only way that people get to an agreement is by feeling “That is good enough for me to live with” in order to avoid the cost, the time, the lack of productivity, the longevity of a court case, the uncertainty of a court case. People are typically very anxious when they come in my room and the reason they have anxiety is because they are going into a situation which is unknown. Once they’ve got a mediated agreement that anxiety tends to go down. Like with many things in life, once you know what the outcome is you can then plan for your future and most of the parties in my room are looking to get closure so they can move on with that future.
My job as the mediator is to ensure that people are heard and typically most people come in my room fearful, regardless of whether they are used to negotiating or not. This is usually the first time they have negotiated about their own children and their financial future so it is nerve racking for both parties. In terms of leveling the playing field that is one of the strong reasons also that you have your attorneys. You want to make sure that you have attorneys who are basically of the same experience, the good interpersonal skills and who work well with the mediator. The mediator is also responsible for ensuring both parties get heard and that doesn’t mean shouting. There is a decorum and a conduct that occurs in my room that I am solely responsible for. It is my job to ensure the two parties feel, just because they don’t necessarily speak in the same way, still have the same level of negotiating power.
From my perspective I see my job very similar to the choice of any professional. You need to go with someone who has a wealth of experience that you feel you have a rapport with – they don’t need to be your best friend; they simply need to be someone you trust to run that process. I have done over 1,700 mediations and only 14 of those haven’t settled, and when I say haven’t settled I think there is an idea that in any kind of mediation that someone is a winner or a loser that simply is not the case. In mediation the highest I say to my clients that they are likely to get is to be able to walk out of my room and go “I can live with that.” That’s the highest they are going to get because if we have a case where we have a winner or a loser then I probably haven’t done my job properly because everyone in mediation is going to feel the pinch somewhat because in order to get to a resolution both parties are going to have to compromise and the extent of that compromise is up to the parties.
Whilst this process is structured, I think there is a misconception and this misconception is this - whilst the negotiations are taking place typically in one day, none of the issues that are raised in that day are going to be the first time that either of the parties have heard about it. These couples are going to have spent time with their lawyers going through various scenarios, speaking to their financial advisors, maybe they will have a financial neutral, and there will be an empirical learning curve for both of the people in my room. The reason why try to mediate or negotiate in those two days is because piecemeal negotiation typically is not very effective. People are not going to want to agree Term A and B until they know what C and D look like and that can be an ever moving (?) during the day. Whilst the process is structured it is flexible to this extent – people have different needs and I am not just talking about processing needs. People have different emotional needs, physical needs, and mental abilities. So I would look at and discuss with the parties what would work for them. There are some situations where people simply cannot negotiate for that length of time, and then there is also those people who simply want to reflect on what has been discussed. So whilst it is structured, the whole point of my mediation process is you have to look at the individuals, you have to look at their makeup, you have to look at their personalities and their needs, and then be flexible to it and hopefully you read that before the mediation but there are times when during the mediation you realize or maybe the client realizes that maybe they are going to need to have to take a break and come back on another day and you have to be open minded to get the best out of each of the people who are in your room.
I deal with divorcing couples; therefore communication has not necessarily been their strength. So the notion that they can’t communicate is the norm for me. What I do is help reframe and rephrase much of what they say to enable the other party to understand what is being heard. It is not unusual for me to rephrase something that one party may say they said for the last ten years and the other party say that is the first time they have heard it because a lot of the time people get into a dynamic in a marriage and they tune out the other person. They are too busy thinking of a repost or they are simply ignoring them so when they come into the mediation my job coming in as a third party who is independent is really to help them hear, sometimes for the first time, what the underlying need is of one party.
It is not unusual that during a marriage that there is a division of labor. One person may know more about the financial landscape than the other. There is nothing wrong with that, that is pretty typical. But what the other person needs to be able to do is one, have access to the financial information, their lawyer have access to all that financial information, and then they need to be walked through and understand that landscape prior to coming into the negotiation. It sometimes involves a lawyer and a financial neutral or a lawyer and a financial advisor to help that person understand a balance sheet, income and expenditure, what do they typically spend in a week, what does their portfolio look like, is it liquid is it illiquid, are there marital or non-marital assets, and some of the language that is used has to be explained.
I think there is often a misconception about mediation and the role of attorneys. First of all, the mediator should not be giving legal advice. The mediator is a neutral and the moment the mediator gives legal advice they are losing that neutrality. The attorneys are there to advise the clients as to likely outcomes at court because at the end of the day what they are agreeing to are terms and conditions in a legal, binding contract. The attorneys typically in my room have good interpersonal skills, very bright individuals, but also very creative and help the parties to think outside the box.
The whole point of mediation is to ensure there is a level playing field and one of the jobs of the mediator is to manage sometimes that one party is more controlling than the other. Sometimes someone can come across as controlling for a number of reasons: insecurity, fear, anger, it doesn’t necessarily mean that they are able to control the outcome. The whole point of mediation is for the mediator to manage the dynamics of the parties and make sure that each party is heard. There is something ironic about people saying “I don’t think I can come into a mediation because my spouse is controlling” because if that person is controlling the last place that they’re going to want to be is a court where they have absolutely no control.
© 2019 Copyright Certified Divorce Mediation, LLC. All Rights Reserved.
This web site is designed for general information only. The information presented at this site should not be construed to be legal advice nor the formation of a mediator/client relationship.