“The quality of our lives depends not on whether or not
we have conflicts, but on how we respond to them.”
– Thomas Crum
As a specialist divorce mediator for more than ten years, this quotation encapsulates the very essence of how a job, which many view as mentally and emotionally challenging, can be a highly satisfying career. Assisting parties to “uncouple” in a dignified and respectful way is extremely rewarding. Nearly 85% of my cases include children under 18 years, necessitating both a Parenting Agreement and a Financial Agreement, the terms of which are negotiated by the parties during my Two-Day, Attorney-Assisted Mediation Process. Regardless of outcome, the parties know that if they have children, their relationship will exist in some form or another forever. The likelihood of them being able to co-parent reduces significantly if they become embroiled in the adversarial process, which exists in both the U.S. and the UK.
The name itself--“adversarial system”--speaks volumes. The parents of these children become adversaries in the court system and inevitably they are polarized, making co-parenting more “wishful thinking” than a realistic option. Even in those cases where the law deems the children emancipated due to the fact they are over 18 years, such that issues of custody, child support and parenting time no longer must be considered in a legal divorce document, the fact remains that these parties are still mom and dad to those children. The parties would not wish their decision to divorce to define their children’s ability to invite both parents to future family events such as weddings, christenings, bar-mitzvahs and grandchildren’s birthdays. Perhaps the parties recognize that the alternative to resolving their issues themselves is so unpalatable that common sense prevails - which can be one reason advanced for the fact that 99% of 1,700 cases I have mediated have reached agreement. Having been a barrister (trial attorney) in London for twelve years, a participant in a mediation and now a mediator, I am in a rather unique position, only too aware of how this process is viewed from all angles – as an attorney, client and mediator.
My practice has grown rapidly over the fifteen years I have been in the U.S. It has morphed as the public has become increasingly aware of how my mediation model can work to resolve conflict. The public is much more informed, largely due to the Internet. In addition, legislators who have been open to the concept have made mediation mandatory in certain circumstances in various states, including Illinois. The public and courts at large have embraced the new wave of alternative dispute resolution, recognizing that if parties are able to resolve their own issues, long term co-existence is far more likely than when an outcome is imposed by a third party who appears disconnected from the needs of the parties.
A divorce could be viewed as the perfect storm of emotions. Two people, at least one of whom has decided to end the relationship, who typically have a history of poor communication are then asked to make decisions about their children and finances. These latter two issues can be difficult in the strongest and most secure of relationships; addressing them in a relationship that has ended is extremely challenging for many clients. In addition there is often a dynamic where one party has checked out emotionally from the relationship weeks, months or even years before the other party. The mediator must be sensitive to the different emotional stages presented by the parties. The parties may not be ready to engage in mediation if one is unable to make informed decisions due to his or her emotional paralysis. Time and knowledge can help that party to be able to engage in the process and play an integral part of the decision-making and eventual outcome.
Concerns are often raised by potential clients regarding the equilibrium of understanding. One party may be much more familiar with the family issues, children’s routines, extracurricular activities, doctors’ visits, while the other party may be more comfortable with the financial issues of the family. A mediator is the fulcrum. The parties should not be making decisions unless they are informed decisions, which requires preparation. In addition, one party may fear that he or she will not be heard because the other party is more vocal, more experienced in negotiation or public speaking. A mediator must be cognizant of these concerns but recognize these are personality traits.
Therefore, while one party in the relationship may be more vocal, no assumptions should be made that this party is necessarily heard. Assumptions have no place in mediation. As my mother once said, “Never judge a marriage unless you are in it.” The same can be said of a divorce.
In my opinion, good mediators are those who have the following attributes: neutrality, independence, humility, patience, empathy, flexibility, problem-solving techniques, interpersonal skills, and control and complete confidence in their process. A mediator must be realistic with his/her clients. Any hope by either party that a personality transformation of the other will occur by the time the Judgment is entered must be addressed.
Parties must be advised that decisions made during the mediation should be based on who the party is now and what that party can follow through on at present. Excellent mediators possess all the above characteristics but are so comfortable within their process that these skills are drawn on at the appropriate times, making the process appear seamless and the parties believing they accomplished the resolution with little help from anyone else. In most of my cases the parties will continue to have a relationship with each other. If they are empowered and believe they are capable of resolving their issues themselves, post-decree issues for many, should be a Latin phrase they never need to Google.
The Oxford English Dictionary defines mediation as: “Intervention in a dispute in order to resolve it”. Carefully consider this definition: the ultimate purpose of mediation is to “resolve” issues. A mediator is not a judge or arbitrator but a facilitator of negotiation to assist the parties in reaching a resolution. In the early years, there was some opposition from attorneys, who viewed mediation as a threat to their litigation practice. These concerns were in part legitimate as, until my process, divorce and/or separation mediation often excluded attorneys. In my mediation model, these concerns were quickly abated when I explained that my model actually requires parties to retain attorneys before they can engage in the mediation process. The retention of attorneys is a prerequisite, and the parties must confirm in writing before participating in mediation that they have attorneys with whom I will speak in advance of the mediation. Attorneys are not only required, they are integral to the success of the actual mediation.
The following model has been created, honed and adapted over the last ten years as technology, awareness and experiences during sessions have developed this particular type of mediation process. In recognition of the fact this process will be ever evolving, this is the model as it stands today.
A resolution of all outstanding contested issues is the intended result when parties and often their attorneys enter the mediation. This is not a fishing expedition to better prepare for trial or a therapeutic session where the mediator offers salient advice as to how to navigate the emotional roller-coaster of divorce or separation. This process is structured with a detailed timetable that includes document exchanges and the preparation of interest statements, as well as a clear demarcation of roles. The mediator runs the process exclusively, the attorneys advise as to the law exclusively, and the parties make the decisions exclusively. When all those involved understand their clear role, they can feel liberated by concentrating on their part within that process.
My business comes from referrals from previous clients, knowledge of my process from observing me present at conferences, the general public knowing and understanding alternatives to litigation and conducting their own research, the courts and attorneys. When one party contacts me, they are advised that both parties must be informed and therefore, they are invited to attend a consultation. The parties must attend this preliminary consultation together. They need not arrive together or wait in the same room, but they do need to sit with me in a room and hear me discuss my process at the same time. This is to avoid the “he said, she said” scenario or any ambiguity as to what my process is about. The fact they are in a room with me at the same time ensures neutrality at the outset.
There are a number of reasons why this consultation is so crucial. This preliminary consultation enables me to start to build rapport with the clients; it serves to demystify my process; and it helps the parties understand what the mediation may look like. Language is reframed from positions and wants to needs and interests. The parties will be able in time to identify their similarities not their differences. They no doubt know their differences, which is why they are in my room in the first place. In addition it familiarizes them with the set-up of the actual surroundings and is the first step in them making a decision together and taking ownership of that decision. If the parties can agree to engage in mediation and can agree on the mediator, two parties who often believe they can agree on very little have already managed to agree on a process and who they wish to guide them through that process. This is an extremely positive and decisive step during a very uncertain time.
After my consultation, which typically lasts one hour, the parties are asked not to advise whether they wish to proceed with me as their mediator but instead to think about it - this is to avoid one party making a perceived or intentional unilateral decision for the other. In the event they wish to proceed with the mediation, each party must individually confirm via email they wish to move forward; one party cannot advise me on behalf of “both” of them. If I have received confirmation from both parties they then, if they have not already done so, appoint their attorneys.
Each party needs an attorney. In the event the parties do not have attorneys already retained, they are requested to do so immediately regardless of whether they choose mediation or not. A mediator at no stage, regardless of whether they are an attorney or not, should provide legal advice to the clients and therefore, attorneys are required from the outset. For a mediator to advise as to the law would undermine his or her neutrality and therefore the credibility of the process. The parties will often request names of attorneys, which I will provide. I receive no referral fees or remuneration for these possible appointments as to do so would once again compromise my neutrality. I provide both parties with the same attorneys’ names, advise who the attorneys work for, and provide some background. I explain they can not interview the same attorney or each retain an attorney from the same firm. I advise how crucial it is to retain the right attorney for them. Different people have different needs.
Divorce or separation is a very personal journey, and the party must feel comfortable with the personality and expertise of their attorney. I will often advise as to which attorneys have worked well together so it does not become about the attorneys, but rather the clients and their needs. If one party has already retained an attorney, I request they share that information with the other party so they can select an attorney who works well with the other party’s attorney. There is a misconception that wealthy people or known personalities have an arsenal of attorneys waiting to assist during this traumatic time. I have not found this to be the case.
It is true that the public at large has a distrust of attorneys, which will often result in them holding back on appointing one. However, while a CEO of a company may not hesitate to retain an attorney in a mergers and acquisition deal, he or she may be far more hesitant when retaining counsel in personal family matters. I make it clear that the majority of attorneys are extremely good and certainly those I have in my rooms have, for the most part, been excellent. As with any profession, a few poor attorneys can taint the perception for the general public. The attorneys I suggest are collaborative in the true sense of the word, rather than the legal term. They assist their clients in understanding the law, provide realistic expectations, likely outcomes and how best to prepare for the mediation so they are in a position to make informed decisions.
The parties, in consultation with their attorneys, decide whether the attorneys should attend one and/or both mediation sessions. In the event one party wants their attorney to attend the session, then both attorneys need to be present so as to ensure that an equilibrium of access to legal advice as well as power exists in the room. Knowledge itself provides the parties with the power to make informed decisions. The attorneys will sometimes attend both mediations or not attend the parenting mediation but attend the financial mediation and vice versa. For the most part, I have found the attorneys’ attendance extremely helpful to the parties reaching a resolution and err on the side they should attend. The following list is by no means exhaustive but illustrates how important the right attorney in the right mediation can be in reaching a resolution that has longevity. First, when attorneys attend mediation, they typically prepare extraordinarily well. They are able to fully advise their clients so both parties have the opportunity to understand likely legal outcomes as and when they arise during the mediation.
Secondly, the attorneys in my mediations are often extremely good problems solvers. They think out of the box and generate creative solutions that would otherwise never be considered in court. These case-specific resolutions, which are able to meet many of the needs of both parties and the children, are extremely satisfying. Divorce agreements are not “cookie cutter” products, and the fact that five people are able to create solutions certainly is likely to benefit the parties far more than an adversarial system. Thirdly, the attorneys can be extremely helpful working with the mediator to test the reality of their clients’ statements or “wish list”. There is little point in a parent offering to pick up the children at school every day if he or she does not finish work until 7:00 p.m. each night. It is important to play the tape out and see what is actually possible for the parties and their children in the particular circumstances of that case. Fourth, the attorneys can work very effectively with the mediator in the absence of the parties to narrow the issues and avoid the posturing that is often associated with litigation. Finally, attorneys are likely to ensure follow through in the event an agreement is reached. By being present, the attorneys can understand how and why their client made the agreement. They can be assured their client was fully informed and understood the implications of their respective decisions.
When the dates for the mediation and the attorneys’ attendance are confirmed, a Formal Procedure and Mediation Agreement (FPMA) is sent to both the parties, and copied to the attorneys. This document details the terms and conditions of the process itself and must be signed by both parties prior to the mediation and again by all parties who attend the mediation on the day of the mediation. The FPMA contains a confidentiality provision, terms of remuneration, disclosure dates for documents, requests for Interest Statements and penalty clauses for failing to abide by the terms of the agreement, including late disclosure. These terms address the criticisms often levied at the court process. Parties believe the court process is too slow and expensive; they feel that they are not heard and disconnected from the system. Petitions are often filed in court that inflame spouses and cause the parties to become more adversarial. Attorneys are forced to appear for frequent court-ordered statuses, at which little is accomplished, but the cost of which further erodes the marital estate. This is frustrating for all.
Most attorneys endeavor to do their best in an underfunded and overburdened system. Just to put this into some perspective my offices are located in downtown Chicago, which is in Cook County, Illinois. It is the second most populous county in the U.S. after Los Angeles County, California. The county has 5,238,216 residents,  which is 40.6 percent of all Illinois residents. Cook County's population is larger than that of 29 individual U.S. states and the combined populations of the seven smallest states. In 2011, there were 33,695 divorces/annulments in Illinois, of which 10,579 were in Cook County alone.
The idea that only two days can resolve all parenting and financial issues in a divorce may seem impossible to many, and overwhelming for most. However, if the process is followed, this daunting task can be completed with respect, dignity and understanding. Provided the parties trust the process and both they and their attorneys have followed and prepared for that process, the parties should be in position to make informed decisions by the time the mediation date arrives. In the event the parties can not make a decision with respect of their children and/or finances, then a judge will. Handing the decision-making regarding your children and finances to a third party and paying handsomely for the privilege to do so is a very unattractive option.
The first day of mediation addresses only parenting issues, and the second day, usually scheduled four weeks later, addresses financial issues. All those in attendance are requested to keep the entire day and evening available, if necessary, so as to avoid tactical needs to stop, e.g. pick up children, conference call. Piecemeal negotiation is not very effective. Therefore, complete commitment to the process is required. Parties and their attorneys need to understand the whole agreement, bearing in mind this is a negotiation and both parties will need to compromise to ensure a resolution. The extent of that compromise will ultimately be a matter for the parties.
Parenting issues are always addressed first as parents often cannot focus on finances unless and until their anxiety and fear regarding the children have been addressed. The parties will need to look carefully at the best interests of the children, recognizing that the needs of each child can and often are different. In addition, the parenting issues are considered separately from the financial to avoid accusations that the children are being used as a financial negotiating tool.
In the event the parties do not have children or they are over 18 years of age, then they will have just one day scheduled for their mediation. The parties will need to look at where they are in their lives. The needs of a younger couple may be focused around the children with child care costs, private tuition and/or college at the forefront of their considerations. A couple whose children have now left the home may be concerned about health care and retirement. Fear of financial insecurity is a very common emotion in my rooms regardless of age or wealth. The fear itself can not be allowed to drive the process, which is why understanding one’s finances is so important as it can often allay many of those fears. As a mediator, I try and avoid the notion of “fair”. The term used in court is “equitable”. What one party deems is fair or equitable can be vastly different than the other. It is such a subjective term developed in part from the history of the relationship. In the finite period I have with the parties, it is unlikely I will assist the parties in changing their minds as to what they consider “fair”. However, it is likely that after examining the needs of each party and those of the children, a realistic resolution can be carefully developed that both parties can live with and move forward.
The requirement for disclosure is very important. Mediation is a legal process and an alternative to litigation; it is not an avenue to avoid transparency. Circumventing disclosure in my mediation process is not an option if the parties wish to move forward. Parties cannot make informed decisions, nor can their attorneys fully advise their clients, without all the requisite documents being disclosed. There are deadlines for said disclosure and, if not adhered to, penalty fees are imposed on the party failing to comply. This has, to date, not needed to be invoked, however it is a real incentive to move matters forward to allow both parties adequate time to prepare.
Preparation is fundamental to my process. It is the preparation by the attorneys and their clients that enable informed decisions in the mediation. If a decision is not informed, one may question whether it is a decision at all. Some parties may need more help than others and financial divorce analysts and neutrals are utilized if the attorneys and the parties deem it useful. This decision is not a matter for the mediator and demonstrates another reason attorneys are so important in this process. The attorneys are able to draw on specialists, who may charge less than their hourly rate, to provide many services, including lifestyle projections and income and expenditure analysis. In addition a therapist may be needed, if only to advise the parties how best to inform the children there is to be a divorce or separation. A mediator and the parties’ attorneys should have a wealth of resources to direct the parties if so needed. It is this separation of roles that allows each person within this process to focus on their part in the mediation.
At the end of each mediation, assuming an agreement is reached, I will draft a Memorandum of Understanding (MOU) within 48 hours of the mediation session. The fast turnaround time is crucial to keep momentum of the process while matters are still clear in the parties’ minds. The Memorandum sets forth the terms of the agreement.
It is sent to the parties first to confirm it is true and accurate, regardless of whether attorneys were present at the mediation. After the parties have confirmed it is true and accurate, it is sent to the attorneys. This part of the process was developed to avoid parties’ weeks later not recalling certain parts in an agreement. The attorneys will take the final approved Memorandum of Understanding and draft it into a binding agreement which is then entered at court. I use Word so the attorneys can often cut and paste my Memorandum and include all the necessary legalese. In some cases, I assign one of the lawyers to draft the agreement either because I am familiar with his or her drafting style or I anticipate that it will be better received by the other party if written by the attorney I select. Further, it is important that the agreement is drafted soon after the mediation so that it can be reviewed and finalized by the parties, thereby maintaining the momentum of the process. I typically do not review the final agreement, leaving this step to the attorneys.
Mediation is a confidential process. This is extremely attractive to many of my clients who would rather not have their private lives being gossiped about on the Internet or have a public record of pleadings, hearings and trials for posterity - if not for themselves, many clients certainly wish to protect their families, friends and most importantly their children. The desire for confidentiality has taken on a life of its own in the last few years with social media being so prevalent in today’s society. Everyone appears to have an opinion on someone else, capable of being expressed with little by way of checks and balances. Likewise, there is little recourse for others if a statement is made that is inflammatory, defamatory or just plain cruel. As an anonymous person one said, “Try and avoid telling people your problems publicly, 80% don’t care and 20% are glad”. This assertion whilst concerning may bring a wry smile as the truth of the statement appears to echo many people’s experience when coping with the trauma of divorce.
Every person involved in the mediation is required to keep confidential and not use for any collateral or ulterior purpose all information arising out of, or in connection with, the mediation, including the fact of any settlement and its terms, save for the fact that the mediation is to take place or has taken place. All information arising out of, or in connection with the mediation, will be without prejudice and not admissible as evidence or disclosable in any current or subsequent litigation or other proceedings whatsoever. This does not apply to any information, which would in any event have been admissible or disclosable in any such proceedings. For example, a bank statement could still be referred to in litigation if used in mediation but an offer made in mediation later revoked would not be admissible in court. The position on this may depend on the relevant jurisdiction, and it is the responsibility of the Parties and their legal advisers to consider this.
Under no circumstances may the parties to the Mediation Agreement call the mediator as a witness, consultant, arbitrator or expert in any litigation or other proceedings arising from, or in connection with, the matters in issue in the mediation.
When I commenced my mediation practice, I made a conscious decision that I would not engage in any social media or attend social events that in any way could compromise my neutrality. When kind and generous gifts were sent from appreciative clients, they were always returned with appreciation and a clear message that accepting any gifts would compromise my neutrality. Social media was just emerging back then and now has taken on a life of its own with LinkedIn, Facebook and Twitter dominating the Internet social space today. For me to be LinkedIn to a judge or attorney or commenting on someone on Twitter could compromise the parties perception of my neutrality. This conscious decision not to engage in an ever growing social media market, while challenging when developing a business, has stood me well.
The cost of unresolved conflict can be financial, emotional and physical. Mediation is invariably a less expensive process monetarily than litigation for a myriad of reasons. First, there is direct access to and between the parties. The parties and attorneys can have direct dialogue, which often avoids misunderstandings and miscommunications.
This is not limited to the mediation session itself. Attorneys that work with me and my process will often have conference calls with me as well as each other that diminish the need for costly petitions, lengthy letters and/or emails. Second, the discovery process that is required in court can be avoided by the disclosure process in mediation. Litigation can often be several hundred thousand dollars and, in some cases, I have had cases where over $1 million dollars had already been spent on attorneys. For many of my clients, the need to get closure has a financial value. Third, one or both parties may not be sleeping or eating properly, and their ability to concentrate on work or parenting has suffered greatly. Productivity at work can have a direct link to finances if one has any form of performance-related pay or fear of job security. Their rank within their firm may rapidly decline when in litigation. Mediation seeks to resolve the issues in a timely manner so that the parties can move on with their lives and be productive rather than entrenched in litigation that can spiral out of control with no certainty of outcome. At the end of the mediation, there is no winner or loser, but rather two people who have reached difficult decisions during a difficult time, finding some closure on this chapter in their lives.
In terms of the actual cost to mediations, I charge $585 per hour, which is split equally between the parties so that each party is paying $292.50 per hour. The case manager will address much of the scheduling, exchanging of documents and pre-mediation work and is billed at $135 per hour. I, personally, have never requested a retainer - a decision I made when starting my practice. For many people, mostly attorneys, this appears a complete anathema. However, since only two parties in the more than 1,700 mediations conducted have failed to pay me, my trust in the process and my clients appear to have silenced the non-believers.
In my efforts to bring my mediation model to a wider audience, I have consistently promoted it at conferences, seminars and media outlets both in the U.S. and UK. I appreciate that divorce mediation may not be considered the most glamorous of international conflicts, however one must acknowledge there are few other conflicts in the western world that affect so many in society, both directly and indirectly. It is for precisely this reason I was delighted to speak at the World Mediation Summit held in Madrid in 2014 and 2016. To be provided with an international platform to discuss my unique two-day attorney-assisted mediation model to such a distinguished audience is indeed an honor. I am extremely grateful to share my address, entitled “The two day attorney assisted mediation model – a conflict that knows no borders”. In addition, my gratitude extends to the people of Chicago who have embraced my mediation model - from clients to attorneys and judges. I have often been asked why I discuss my process when market forces and human nature compete to preserve the intellectual property of a successful business. I find this counter intuitive to the mediation ethos as a whole. If my process can assist parties in reaching an informed resolution in a respectful environment, rather than endure the painful process of a lengthy and expensive litigation process, then it is my privilege to share the tenets of my mediation process.