“Finding a highly qualified mediator to listen carefully and to help clients who are navigating through the fog of divorce can make all the difference.”
I began a private divorce mediation practice six years ago after having been a Connecticut Superior Court judge for nearly two decades. This allowed me, for the first time, to help parties address the painful challenges presented by divorce in a forum outside of the requirements and structure of court-based litigation. This article describes the advantages of divorcing parties using mediation as a first-choice option under a wide variety of circumstances, why divorce mediation is trending in that direction, and what parties seeking a mediator should be looking for.
Litigation and Mediation Contrasted
During my time on the bench, I presided over and helped settle hundreds of divorce cases. Most of these matters had been filed in court by highly trained lawyers with decades of experience representing clients, who were, in many cases, going through some of the more difficult and consequential passages of their lives. These hardships were often magnified when children were involved. Many of these cases benefited from the lawyering and legal process requirements that an adversarial court-based approach provided. Situations in these cases seemed to dictate that the parties needed to spend at least some period of time “fighting it out” in the proverbial litigation ring.
However, in most of the cases I encountered, this process seemed to be somewhat off-center and not ideally suited to achieving the best results for parties and families. It was frustrating. It had occurred to me, as well as to many others, that mediation, a process centered on collaboration and seeking voluntary resolutions, was often the best first option for most cases, with litigation being turned to only when necessary. In fact, judges for a long time have routinely advised divorcing parties to seriously consider engaging in mediation before proceeding down a litigation path.
In mediation, a neutral party called a mediator facilitates discussions and negotiations intended to lead to a voluntary agreement that sets forth terms and conditions that are acceptable to the parties. In its purest form, this involves the mediator and the two divorcing parties. There are instances as well where the parties hire attorneys to participate in the mediation.
The Many Advantages of Mediation
Quality of Decision
In my experience, in cases where the mediator and the divorcing parties interact directly without the involvement of separate legal counsel, the intimacy of the group allows participants to develop some level of rapport, familiarity, trust, and a sense of common purpose. The participants take the time and expend the effort necessary to parse out and expand areas of agreement, and to reduce and eliminate, or reach compromises, with respect to areas of disagreement. The parties rely heavily upon the experience and expertise of the mediator. They also have access through the mediator to experts who, if needed, can inform the parties with respect to specialized areas such as tax, child custody, valuation of assets, and pension law.
Divorces present issues that can range from simple, ordinary ones to those that are complex, technical, and hugely consequential. The mediation process affords the flexibility to cover a wide spectrum of such matters. Regardless of the variables presented by a particular case, working out details and resolving differences in ways that are fair and equitable and that the parties can agree upon most always requires hard and detailed-oriented efforts. However, it is this very process that produces informed and sensible solutions to the challenges of each situation.
In my experience, mediations, where legal counsel for one or both parties participate, rely on a somewhat different dynamic than when they do not. While such mediations do tend to be less adversarial and more informal than litigation, there tends to be an irreducible element of advocacy at work as well. This, of course, might be called for, depending on the circumstances of the case and the inclinations of the parties.
In any event, once an agreement is reached in mediation with no legal counsel present, the parties are advised to have an attorney review and confirm that the agreement is sufficiently equitable and reasonable and likely to be approved by the court.
An initial consultation with a mediator can help parties determine whether the overall situation would benefit from mediation, and if so, whether it would be best to include legal counsel as participants or not.
Cost-Effective
One major attraction of mediation in divorce cases is that mediation can be significantly less costly than litigating a case in court. It most often provides the parties with a shortcut to resolution that cuts costs while producing, in many circumstances, results that are more acceptable and satisfactory to the parties than might have been achieved through litigation.
Though expense is not necessarily determinative, it should be noted that mediations without the participation of legal counsel are typically less expensive than mediations with such involvement. In the former, the costs principally consist of compensating the mediator. In cases where one or two attorneys are involved as well, their hourly fees increase the costs of the mediation accordingly and are in addition to the fees paid to the mediator.
In general, the mediation process, though informal and efficient, may still, in many instances, involve a long list of items to be considered and resolved. Consequently, the added costs of involving attorneys in the mediation process can be a significant consideration in some cases.
The Parties are the Decision Makers
In mediation, the parties discuss and negotiate all outstanding details and issues in question with the expert assistance of the mediator. The mediation proceeds with an organized agenda and operates under rules, ethical restraints, and stages that the parties understand and have agreed to. Hence, mediation decisions are not handed down by a judge, but agreed to by the parties themselves, allowing them to have the final say on all matters, some of which will have far-reaching significance.
Within a general framework set out at the beginning, mediation gives the parties an opportunity to control the discussion, and to delve deeply into subjects that the parties find particularly important. Many times, with the mediator’s input and guidance, the parties can come up with creative solutions and compromises that can make substantial differences, which otherwise might not have been available had a litigation approach been followed.
More Durable
An agreement reached through mediation reflects terms and conditions that, while not necessarily perfect for one or both of the parties, have been agreed to by each of them. Mediated agreements thus provide firm foundations for the parties to rely upon and refer to, allowing for closure and guidance going forward.
Less Confrontational and More Flexible
Divorces come in all sizes and shapes. Certainly, in many cases, communications are strained or difficult. Mediation can provide a neutral and safe space to do the hard work of coming to an agreement and working out differences.
Virtual meetings can soften the difficulty and awkwardness that parties might otherwise experience in interacting with each other in person. Work sessions which center discussions and negotiations on materials and other information provided to the mediator by the parties, encourages and enables all participants to be on the same page and to be fact focused.
In this busy world, communicating electronically and meeting virtually often saves everybody time and trouble. Virtual meetings are generally more flexible and convenient and get the job done.
Private and Confidential
By agreement, most everything that occurs in mediation is confidential. Mediation encourages parties to speak freely in what is essentially a private forum. This should be contrasted with proceedings that take place in open court where confidentiality is not usually available.
Parties Choose the Mediator
The importance of selecting the right mediator for your case cannot be overstated. With mediation, the parties can hand pick a mediator based upon his or her qualifications and experience in resolving divorce cases in mediation. There are several important criteria that parties should consider in selecting a mediator. The ideal mediator:
- is neutral and unbiased;
- is dedicated to the mediation process;
- has a temperament suited to leading successful family mediations;
- has experience, knowledge, and expertise in all areas of divorce law and practice;
- can supply the necessary resources and administrative support for conducting a structured and complete mediation for a variety of divorce situations from start to finish;
- has a familiarity with and specialized knowledge of the technical aspects of divorce, including the ability to access outside experts where indicated;
- is adept at using and leveraging technology to provide an effective and optimal experience for the parties; and
- has a substantial track record of achieving quality resolutions in a high percentage of the divorce mediations that he or she has conducted.
Going forward, I believe that mediation should and will continue to trend as the approach that most parties who are divorcing will choose as an initial option. It offers a flexible, adaptable process which is useful and superior in the many respects described above for a wide variety of cases. Mediations that involve legal counsel as participants will continue to have their place, and be preferable under a variety of circumstances as well.
The success rate for mediations that involve only the mediator and the parties in my experience can approach 100%, which is one of its great attractions. Because of that and the potential for enhancing the quality of solutions, I believe that such mediations will continue to develop as the centerpiece of an emerging more modern, smart and effective paradigm for obtaining a divorce.
Lastly, I will share a secret that I believe most veteran lawyers would agree with. Often the best and most efficient way to use legal services is to ask a lawyer to render advice drawing directly on his or her professional experience and learning amassed over a substantial career. Finding a highly qualified mediator to listen carefully and to help clients who are navigating through the fog of divorce can make all the difference.