AVOIDING LITIGATION

FAQ

+ What is mediation?

Mediation is a voluntary process where couples/parents create their own financial settlements and parenting plans. Since mediation is not a win-lose process like the legal system, couples/parents are able to communicate effectively, solve problems and reach agreements based on their needs and best interests, and those of their children. The decisions that a couple and parents need to make about their divorce and their children are personal, not legal. Mediation provides a neutral environment where all options can be explored and evaluated before final decisions are made. Working in this type of environment fosters cooperation and reduces emotional decision-making, helps couples/parents overcome impasses, builds on their points of agreement, and helps them communicate effectively to achieve common goals and best possible outcomes.

+ What does a mediator do?

Mediators are neutral facilitators who help parties communicate clearly and effectively; keeping them focused on solving problems, managing their emotions, and reaching agreements. Mediators are not the decision-makers, nor do they take sides. Self-determination is the cornerstone of mediation and agreements that both spouses/parents will honor. Mediators provide the tools and environment for couples/parents to make decisions that they feel are fair and sustainable. Skilled mediators can also identify and help parties work through emotions that can hinder communication and good decision-making. When mediation has been completed, mediators prepare a written record of the parties’ agreements in a Memorandum of Understanding (MOU). The agreements in the MOU are used by a mediation friendly attorney or the parties to incorporate into their divorce decree. In some states, mediators are prohibited from preparing an MOU as it is considered the unauthorized practice of law (UPL).

+ Does mediation really work?

Mediation is highly effective as evidenced by an average success rate of 85%. Unlike litigation, mediation focuses on good outcomes for spouses and children. This problem-solving, non-adversarial environment eliminates the anxiety of legal over-reach and court orders that often result in family fracturing, parent-child alienation, financial insecurity, and bankruptcy. Couples who complete mediation express satisfaction with their ability to solve problems and create parenting plans and financial settlements they had confidence in. The success of mediation depends on several factors: the training, experience and skill of the mediator, and the cooperation and commitment of the parties.

+ Does a mediator have to be a lawyer?

The short answer is no. In fact, the best mediators are not lawyers. Professional training, skill and emotional intelligence are the qualities of a good mediator and should be measured before hiring. While there is still a misconception about attorney-mediators, it is important to understand that lawyers who mediate have no advantage over a professionally trained mediator; they cannot provide legal advice of any kind, they cannot steer the process and they cannot represent either party in court after mediation or the parties terminate mediation. An additional concern with attorneys who mediate is their ability to maintain neutrality. Like any other profession, mediators require training to facilitate divorce and parenting issues. Most attorneys lack this level of training and sensitivity as a product of their training as litigators.

+ What training does a mediator need?

The best mediators possess extensive formal training, have professional or national certification, and affiliate with national or international professional associations. Basic mediator training in the form of 40-hour courses or less, or general overviews offered in law schools are not sufficient to mediate divorce, high conflict, or parenting cases. There are currently no training or certification requirements in any state for mediators, so it is important to qualify a mediator’s training and experience during an initial interview.

+ Is mediation appropriate for high conflict cases?

In most cases, high conflict divorces or parenting issues resolve better and in less time through mediation as opposed to using only attorneys if the mediator is skilled and experienced with these types of cases. The punitive, aggressive nature of the legal system fuels high conflict cases, prevents constructive communication, and causes them to escalate rather than resolve. Mediators who are experienced with high conflict cases understand how to manage high conflict personalities, are skilled in diffusing conflict, and steer both parties constructively through the process - whether they involve mental health issues or personality disorders. It can be helpful, or necessary, to have an attorney during a divorce or with parenting issues to provide guidance and information that can be used during negotiations and keep the parties committed to mediation.

+ How much does mediation cost?

Compared to attorneys, mediation is a fraction of the cost. Most professional mediators charge an hourly rate comparable to attorneys however, the amount of time it takes to create a settlement or parenting plan is drastically less through mediation. In the northeast, for example, couples could expect to spend $15,000.00+ using two attorneys as opposed to approximately $3,000.00 with a professional mediator. As an ethical rule, professional mediators do not charge retainer fees.

+ What if my spouse or child’s other parent will not mediate?

If mediation is rejected by one spouse or parent a parenting plan should still be created but getting there will be a little different. Working with a mediator or parenting plan specialist is still an option, even if only one parent engages, because the parenting plan can be introduced through attorneys and implemented as part of the divorce or parental separation. High conflict divorces or unmarried parental court orders should never be finalized without a parenting plan since not having one often leads to additional stress on children, greater conflict between parents and potentially bigger legal problems down the road.

+ What is collaborative divorce?

+ Should I hire an aggressive attorney?

In most cases hiring an aggressive attorney before trying other processes, such as mediation or collaborative divorce, can be detrimental to achieving the best outcome. Many attorneys lack the knowledge and temperament required to reduce the level of conflict in high conflict divorces and aggressive attorneys often inflame passions adding to the conflict. As a result, they are often unable to handle parenting disputes and parental alienation in a constructive manner that de-escalates conflict. High conflict cases often have better outcomes when conflict is not escalated, and the parties remain constructively engaged. If hiring an attorney is the only option, choosing one who is experienced with high conflict cases and parental alienation is a must.

+ What is a parenting plan?

Parenting plans are the guidelines, decisions and structure parents create for their children, and to define their roles and responsibilities as co-parents after divorce or separation. Parenting plans also eliminate ambiguity especially in high conflict cases. When parents separate, whether they are married or not, they should create a parenting plan to ensure their co-parenting relationship will be as smooth as possible and eliminate ambiguity. Parenting plans include time-sharing schedules, holiday and vacation schedules, each parent’s financial and day-to-day responsibilities, as well as numerous other factors that are part of raising children in separate homes. Parenting plans include details and agreements that can prevent future conflict, they address important decisions that fall outside of the jurisdiction of family court, and ensure children have the stability and consistency they need to thrive. In high conflict cases, parenting plans are a must, and the depth of detail should match the level of cooperation or conflict that exists between parents. Even couples who are amicable at the time of their separation or divorce are not immune to disagreements that can put stress on their co-parenting relationship. Having a parenting plan can mitigate future conflicts, and even litigation, because parents have already addressed many of the issues that cause problems post-divorce or separation. In high conflict cases, a parenting plan when - incorporated into a divorce decree or custody/placement order – can be legally powerful if one parent violates the terms of the plan. Creating a parenting plan is typically only done with mediators or experienced therapists since attorneys are not able to work cooperatively with parents to define their co-parenting responsibilities.

Thank you to Lori Grover, NCM for providing the information on this page.