What I offer below is some thoughts and ideas of questions
that may be helpful to ask at your initial consultation with your mediator. A free initial consultation is an opportunity
to get to know your potential mediator and make sure that you are making the
right decision. This person is going to
help guide you in making some of the most important decisions of you life. Due diligence is not just important, it is
critical.
1. First, hopefully
you will have determined before the first session if the initial consultation
is free. I covered this in a previous
blog post. (see https://www.amherstmediators.com/2017/10/free-initial-consultation.html). In short, some mediators charge for the initial
session and some don’t. I do not charge
for an initial session. I see it as an opportunity for the clients to make sure
they feel comfortable with me as the mediator and for me to make sure that the
case is appropriate for mediation.
2. There are a number
of questions which are important to ask but which will inevitably fall into the
“it depends” category. While it is not
within the scope of this article to answer the questions posed below, please
refer to previous blog articles which discuss the questions in substance.
a. How long will it take? This question has two parts. First is, how
long will the mediation itself take and second is how long will the divorce
action take?
b. Related
to the first question is how much will it cost? How long the process lasts and how much it
costs are the two most common questions. (For a substantive discussion of these
questions- see https://www.amherstmediators.com/2017/02/more-frequently-asked-questions-that.html.
3. Do you meet at
regular intervals, (say for instance every two weeks) or is the scheduling
based on the individual needs and schedules of the clients? Mediators have
different approaches to this issue. Some will meet at prescribed intervals and
some will leave it to the clients to determine the pace. There are pros and cons to each approach but
you should think about your situation and what would work best for you.
4. Does the
mediator take a retainer or do clients pay as they go? This is a very important question that may
have an impact on whether you choose a particular mediator. I find that many clients that I deal with are
struggling financially. Many clients
come into mediation already in debt and now having two households is another
additional burden. I have clients for
whom the pace of the mediation (i.e.- how often we meet) depends on whether
they have the money to pay for the session.
One of the advantages of mediation over litigation is that it is almost
always cheaper. If clients have to come
up with a $2,500.00 or $5,000.00 retainer at the beginning of the mediation,
they simply may not have the ability to come up with that much up front. I, for instance, ask clients to pay at the
end of every session but they pay as they go.
(I ask for a small retainer of $300.00 which is used for drafting and
time spent outside of the actual mediation).
I find that having clients pay as they go makes it affordable for
clients and keeps them in control of the cost.
5. Will the
mediator draft the ultimate agreement? If the parties reach an agreement,
will the mediator draft it? This may
seem like a question with an obvious answer but in fact, not all mediators will
draft a divorce agreement and not all mediators can draft a divorce
agreement. If the mediator is not an
attorney, then the mediator cannot draft a divorce agreement as it could be
seen as the unauthorized practice of law. Non-lawyer mediators often draft
agreements called a “Memorandum of Understanding”. There are also lawyer
mediators who choose to help clients reach an agreement but choose to not draft
the agreement. This means the clients then need to hire their own lawyers (or
have their current lawyers) draft the agreement.
6. Will the
mediator draft the court papers?
When I first started mediating in 1994, I left my initial training with
the impression that it was not appropriate to draft court papers for clients.
As I started mediating more, I quickly encountered the common situation where
the parties had reached an agreement but now discovered that they needed to
either hire a lawyer or draft the court papers on their own. While preparing the court papers is not
tremendously complicated, for clients in the midst of the anxiety of the
divorce, it was just one more thing.
Although I give clients the choice of either my drafting the court
papers or their drafting the paperwork and saving a little money, almost 100%
of the time, clients have me draft the paperwork.
7. Will the mediator go to court with the parties?
8. Will the mediator tell the parties what is a fair agreement? Another way to ask this question is “What is the role of the mediator?” This is a critical question that goes to the heart of the approach that the mediator will take. There are some mediators who see themselves as more directive and some mediators consider themselves facilitative. A directive mediator will give you his or her opinion on what is fair or what a court might do. A mediator who is a facilitative mediator will help the parties reach an agreement, discuss the issues, explore options but will not tell the parties what he or she thinks the parties should do. I spend a fair amount of time discussing this with clients. I am a facilitative mediator. I will not tell clients what I think is fair because ultimately my goal is for them to reach an agreement based on what they think is fair- not what I think is fair. My conception of fair is based on my world views and biases. My goal is to make sure they have all the information they need to make an informed decision.
9. The corollary to the above question is will the mediator tell the parties if she thinks the agreement is not fair? This is a complex question. In addition to my goal of making sure they have all the information they need to make an informed decision, I want to make sure that when they go to court, things will go smoothly and the judge will approve their agreement. If I think they are agreeing to something which may lead to a problem with the judge approving the agreement, I will discuss it with the clients. How did they arrive at the decision? Do they understand it? Do they believe it is fair? I don’t see it as my job to change their minds but I do see it as my job to make sure they are not under some misunderstanding of the law or facts and I want to make sure that their rationale is sound.
10. Other than
court papers, will the parties need anything else that would require drafting
or lawyers and how much will that cost?
The answer to this depends on the individual situation. There may need
to be deeds drafted, Qualified Domestic Relations Orders drafted and there will
be a cost for these. Find how in advance how the mediator will handle this?
Will the mediator draft the QDRO or Deed if those are necessary?
11. How well does
the mediator know the particular court that your divorce will be filed in? This could be extremely helpful and
important. I have had situations where timing for filing the divorce was
critical because a party was moving out of state. I was able to call the right person at the
court and obtain a date in short order and the clients were able to process
their divorce before one of the parties moved.
Different courts have different processes. It is helpful if the mediator
knows those individual idiosyncrasies so that the clients are prepared when
they appear before the court.
12. Are there any
downsides to using mediation? There
are always pros and cons to every decision you make. Talk to your mediator
about what he or she thinks are the pros and cons of the mediation
process.
13. Should I have
my own lawyer? I always encourage
clients to speak to their own lawyer. This is important to talk to the mediator
about. Some mediators will not take the mediation if clients do not have
lawyers. Talk with your mediator about
the role/or non-role of lawyers in the process.
14. Does the mediator meet with clients individually? This is another area that mediators approach very differently. Talk to your mediator about how they approach individual meetings and think about what is important for you on this front. See https://www.amherstmediators.com/2016/07/neutrality-and-transparency.html
Questions you may be tempted to ask but which I don’t
recommend?
1. What is your success rate?
2. Do you keep track of what percentage of cases settle?
3. What do you think is fair?
The reason I don’t recommend the above questions is a whole article in itself. Maybe a better question for the mediator would be, “How do you define success?” It is precisely because I do not believe there is just one answer to the question that I don’t like the question of what is my success rate, and why I do not keep a track record or batting average of cases settled.
There are some obvious questions which may or may not be
important to you and which probably apply to any situations where you are
hiring someone, like
1. How many years have you been mediating?
2. What percentage of your practice is mediation?
3. What percentage of your practice is family law?
4. Are you involved on a local, state or national level with
any mediation organizations?
5. Outside of your
private practice, in what other ways are you involved in mediation? Are you on any statewide committees? Do you teach or train mediators? Have you
published articles on family mediation topics?
I find that clients rarely ask me these questions. It may be
that in this age of the internet, most of the answers to those questions could
be found on the web or the mediator’s website. If the mediator does not have a
website it may be useful to ask some of these questions to get an idea of the
background and breadth of knowledge of the mediator. In general though, I find that other than the
basic questions discussed at the beginning of this article, most clients are
going to use the initial meeting to get a feel and a gut sense for the
mediator.
The questions which you should be asking yourself are:
1. Do I feel comfortable with this mediator?
2. Do I feel like this mediator has integrity?
3. Do I feel like
this mediator will be fair and balanced and maintain integrity in the process?
4. Based on what I
have heard, do I have any concerns about the mediation process in general?
Ultimately, both parties to the divorce action need to be
comfortable with the mediator. Sometimes one is comfortable and the other is
not. You should feel comfortable that
the mediator is skilled, knowledgeable, competent, experienced and has the
temperament that works for you. While it may be tempting to base the decision
on whether you feel like you can influence the mediator to take your side or
like you more or believe in you more, the real test should be, do you feel this
mediator is knowledgeable, experienced, skilled, able to maintain neutrality,
professionalism and does he or she provide a safe space to discuss sometimes
difficult issues?
