Monday, October 29, 2018

What Should You Ask Your Mediator at the First Session?

At my initial free consultations, I usually start by giving potential clients an overview of the mediation process, a little bit of background about me and my philosophy about family law and mediation. At some point I will turn to the clients and ask if they have any questions.  I am often surprised that prospective clients have no questions.  It could be that I have done such a comprehensive and fantastic job explaining the process that they truly feel they have all the information they need.  I don’t really think that is it though. Maybe they have already done all the research they need. Sometimes I think that the process is so overwhelming that clients may simply be distracted and not know what to ask.  For most people it is their first time divorcing and they do not know where to start.  Finally, sometimes clients have been referred by people, they are not shopping around and have come in to the initial session knowing that they plan to hire me. Sometimes, in those situation, clients save their questions for after we officially get started.

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  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

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

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?