What is mediation?
Mediation has been defined as a cooperative problem solving process
where a neutral professional assists the couple considering divorce
in clearly defining the issues in dispute, and in helping them
reach agreements that are in the best interests of the family. The
mediator does not represent either party; does not take sides; and does
not make decisions for others. What the mediator does do is help the
participants resolve misunderstandings and communicate more
clearly with each other. Parents are helped to understand the needs
of the children, reach agreements in their best interests, and
develop a cooperative parenting relationship. Hostile and competitive
feelings are reduced so that the couple can better adjust to the divorce
and plan for the future.
How do I find a mediator?
First ask friends or family members if they can recommend
someone. This is not as easy as getting a recommendation
for a "killer lawyer", but it is becoming easier as the
process achieves greater acceptance and popularity. Or contact
the New Jersey Association of Professional Mediators (NJAPM)
with members of many disciplines (lawyers, psychologists,
social workers, accountants) throughout New Jersey) for the
names of "Accredited" divorce mediators in your County.
Their web site is located at www.njapm.org. You can get its phone
number and address from the site. Similar organizations
can, I'm certain, be found throughout the world. Also check
with your employer to determine if your health care package
includes managed behavioral healthcare (MBH) which in
turn may include divorce mediatior services.
What should I look for in a mediator?
A skilled Divorce Mediator ought to have knowledge of family
law, psychology, as well as negotiation and mediation techniques.
Inquire also as to the number of years of mediation experience;
the number of mediations done in the past 5 years; and the names
of the professional organizations the mediator is associated with
and in what capacity.
What happens next?
How does it work? In my experience, the couple starts by first
meeting the mediator in what is called an "orientation" or question
and answer session. At this time all of your questions are answered
(or should be) to your satisfaction, and the process is explained
in detail. After this the couple, with the help of the mediator, will begin
to discuss their concerns; offer their proposals and consider
the proposals of their spouses; and respond to the questions of the
other and the mediator. Between sessions the couple gathers all
relevant financial data, or if necessary the opinions of experts such as
appraisers or accountants, with this material treated with the same
care and concern as would be the case in the adversarial
process. Step by step the couple make the decisions about the type of
agreement they (not necessarily their lawyers or friends)
want.
During this process care is taken to make sure that all relevant issues
and the needs of all family members are considered.
Won't I be giving up my day in Court?
The answer to this question depends on what you mean by your
"day in Court"? If you're asking whether attempting divorce
mediation means giving up your right, if not satisfied, to later
hiring separate attorneys and taking the matter to Court for litigation
of the issues, the answer is "no". What has occurred in mediation
is
usually considered confidential, and will not in any way interfere
with your "right" to have a Judge decide the issues for you.
But since more than 95% of all divorces filed are settled before trial,
chances are that you will not achieve this illusory "day in Court"
(Which is not to say that there won't be plenty of days spent at
the Court House on motions, conferences, and the like.) If there's
any "giving up" of anything in either process it is the giving
up of control when you put your fate in the hands of lawyers and
the court system.
What if money is no object?
It is very important to keep in mind that "cost" does not only
mean
dollars spent. There is an emotional cost to the parties and their
children paid in most litigated divorces. This emotional cost is greatly
reduced in the mediation process. If for no other reason but the
easing of this added burden, there are many who would strongly
urge that litigation should be undertaken, regardless of how much
money one has, only as a last resort. Is mediation for everyone?
While mediation in my view is the most sensible approach for most
people, it is clearly not for everyone. In my practice, and I believe
that mine is the majority view, I will not accept a couple for
mediation if physical or chemical abuse is present. The reason for
this is that in those types of cases decisions are more likely than
not being made on the basisof factors other than what the parties
would otherwise consider as fair and reasonable.
Isn't mediation only for those couples who are
friendly and get along well?
Not at all. Doesn't it make sense that if they got along and
cooperated so well they probably wouldn't be considering divorce?
One of the main tasks of trained and experienced mediators is to
show people how to work together productively in spite of their fear
and their anger. They help establish an atmosphere in which trust and
cooperation can develop; encourage creative problem solving;
intervene when emotions hinder the process; and test the feasability
of proposed solutions so that a final agreement has the best
chance of working.
Isn't mediation only for those couples with little or
no assets? Aren't large estate matters too complex
for mediation?
I hear these questions quite often. When they come from my
colleagues at the matrimonial bar, who should and sometimes do
know better, I sometimes become angry enough to chew nails. From
their point of view, where the object of the exercise is to get as much
of the matrimonial pie for their clients as possible, (1) the fight is of
paramount importance in "protecting the client" in such "highly
technical and complex" matters, and (2) mere mediators just aren't
equipped to handle them. Plain common sense makes clear that
nothing could be further from the truth. From my perspective,
I'd rather have 1000 "Donald and Ivana Trump" type of matters
(10 a week would be manageable) rather than one involving a couple
with $40,000 a year in rockbottom expenses and only $25,000 in net
income. In my experience, the outside experts in high profile
cases calculate current values and the tax consequences of the parties
without much difficulty (after working through their pain and anger)
to determine who will get the mansion in Florida, the hotel in New
York, the $20 million transfer of cash and stock,etc. In the other type
of matter, the one that matrimonial lawyers don't really want, the
mediator must assist the parties in the extremely difficult (sometimes
seemingly impossible) task of making their insubstantial financial
ends meet. Give me those "complex" cases every time!!
Will I need a lawyer?
Divorce Mediation is not a substitute for the services of a qualified
attorney. However, it is my view that in this process the parties
are best served if their lawyers act as advisors and not as adversaries.
Thus, lawyers are called upon in the same way that we employ
most other professionals in our daily lives (such as doctors and
accountants) to give their expert opinions as to the legal rights and
obligations of the parties. The parties are usually encouraged
to obtain legal counsel for the purpose of providing answers to
specific questions of law, and to review the terms of their
agreement from a legal standpoint. And, of course, attorneys
assist in putting the settled matter through for an uncontested divorce.