Figuring out how to choose a divorce mediator can be confusing. In this Divorce Academy video, Kevin will explain the differences between an attorney-mediator and a non-attorney mediator, as well as the most essential factors to consider when choosing who will mediate your divorce.
VIDEO TRANSCRIPT:
Hi everyone. Welcome to Divorce Academy. I’m Kevin Handy and I’m one of the attorney-meditators here at SnapDivorce. In today’s video, I’m going to answer your question “How do I choose a divorce mediator near me? I have several points I think you should consider when choosing a divorce mediator. I’m going to make sure you get the right mediator, someone who has the right experience and is going to give you a good result.
I’m going to start out with number one: should you choose an attorney-mediator or a mediator. You’re probably like, “What’s the difference?” Well, you may be surprised to know, but in most states, there’s no regulations or requirements as to who can be a mediator. So, anyone can do it. You could do it, you get a lot of psychologists getting into mediation. In divorce mediation, in particular, you have a lot of people that come out of their own divorce, and think “oh I know everything now, I’m going to become a mediator, or I’ll become a divorce coach.” This is in contrast to the attorney-mediator who has gone to law school, they’ve studied the law, and they know the law. They’ve probably been practicing in divorce litigation for some years before they have become a mediator. It’s really important to choose the attorney-mediator as your mediator and not someone who claims to be a mediator. You’ll understand why a little bit more- I mean it should be fairly obvious. But, I’ll give you some examples as to why this is important.
The second factor you should consider in choosing a divorce mediator is are they a practicing divorce attorney? Or have they been a recently practicing divorce attorney? Again, it’s important to have experience when you’re doing divorce mediation (in divorce law). When you come in you’re going to want to have someone help you resolve your case. You are going to want them to give you advice as to what’s likely going to happen in court. Someone who has not been a divorce attorney is not going to be able to do that. They are not going to know what happens in court – if you guys were to go to court. Why is that important? Well, you and your spouse are probably going to be talking about things such as the division of marital property, or child support, or alimony. As you do those discussions you’re going to want to frame them by, What would happen in court? What is the law in my jurisdiction? Should I be paying $1,500 a month in support? Or should it be 500 a month in support? Your mediators who have not been practicing divorce attorneys are not going to know the answers to those questions.
Keeping those in mind, the goal of divorce mediation is to resolve your case out of court. You are probably getting into divorce mediation because you don’t want to have to hire individual attorneys. You don’t want to litigate the case. You don’t want to have to spend a lot of money going to court. With that in mind, it’s really important to choose a divorce attorney-mediator as your mediator. I’m going to give you some specific examples.
Number one. Drafting Skills. Divorce attorney mediators are going to have the skills to draft your agreements you’re going to reach in mediation. At the end of your mediation, you’re probably going to have a marital settlement agreement, or a property settlement agreement. You’ll have a custody agreement if you have kids. You’ll have support agreements (if that’s applicable). You have to have someone who knows how to draft them clearly, that has the right language to put into them. It’s really important and I’m going to give you an example of why. I’m a divorce mediator but I’m also a divorce attorney that litigates cases. We have cases that come in on a regular basis that come in from a large mediation firm nearby that doesn’t use attorney mediators. They just have sort of laypeople, or psychologists draft their agreements. People will come in and say, “Hey my agreement is not enforceable, I need help.” And guess what – they end up in litigation.
So, I had one client, and I’ll give you an example. He came in, and he and his wife had a house and he wanted to off the mortgage and the deed, and she was supposed to refinance. He gives me the agreement and here’s what it says (so this is what they agreed to) “The parties agree that wife should take all necessary steps to remove husband’s name from the mortgage, note, and deed, as soon as practical.” It sounds pretty good, it may sound good to you as a layperson but as an attorney, I immediately see the problem here. What does “as soon as practical mean?” In husband’s mind, it probably means next month or two months from now.
In wife’s mind, it probably means, whenever I’m ready, whenever I feel like it. You already create some ambiguity in the drafting. Then it goes on to say, “the parties agree that they shall review this arrangement on an annual basis.” You put those two sentences together and basically wife is thinking, “I have forever. Every year I’ll decide if it’s practical for me to refinance the house. Husband is now trapped in this economic relationship with his wife. How does he get out of being on the mortgage and deed? Going to court, you’re going to have to litigate this issue because there are no clear terms here. This turned into a very expensive problem for my client. We had to file petitions, go to court. It was exactly what he was trying to avoid by doing divorce mediation. You want someone who is going to draft provisions that are enforceable and clear.
The next issue is unrealistic or unenforceable provisions. You will see this a lot when you use non-divorce attorney mediators as your mediators. Again, the same firm, we had another client come to us. They had drafted up an agreement that said, he had to pay more alimony per month than he actually earned. I don’t know how he agreed to this. I don’t know how it happened, but that’s the way the provision was drafted. He came to us and said, “I can’t do it.” You know, it’s very hard to overturn marital settlement agreements in court. We took this one to court, and lucky for him, the judge agreed that it was an impossibility. So, that provision got set aside. But guess what- now the wife’s out of luck. She had this idea that, hey I have this agreement, I’m going to get this money coming out of mediation. Someone in that mediation session, that mediator should have said, “this is not a realistic provision. This is going to cause problems.” But no one did, because they were most likely inexperienced or had no concept of the divorce system.
Finally, knowledge of the court system. You’re going to get that from your divorce attorney-mediator. You aren’t going to get that from a non-divorce attorney-mediator. The way it works, when you’re in mediation talking about an issue whether it’s property distribution or support, most people (almost everyone) wants to have an idea of what the court would do. What does the law say? We want to do what’s fair, what’s right. Well, your attorney-mediator will have been in court. They will know what the court system in your jurisdiction is going to do. They will know, they can run support calculations for you. They can say, “look, for your case, based on the property your case is a 60/40 case or a 50/50 case. They can help you identify marital versus non-marital property. It’s going to go a long way to help you resolve your case, fairly. A non-attorney mediator is just not going to be able to do that in the same way. You really have to look for an attorney-mediator that is also been a practicing divorce attorney.
Some other things to consider: the style of mediation. You may not realize this but there are different styles of divorce mediation. There’s facilitative, evaluative, and transformative. Facilitative is the style that most of the non-attorney mediators do. What that means is they’ll help you guide your discussions but they aren’t going to give you any advice. They’ll say, “Let’s talk about the house today, or let’s talk about support” and then they will sit back and say, “Well what do you think? What do you think? They just leave It as an open discussion. With the idea that the couple should just come to their own agreement, in respect of what the law says. That’s how they approach it.
Evaluative is what most attorney-mediators do. They’ll structure discussions just like facilitative, except they will say, “Let’s talk about marital property. First, let’s identify it. Here’s what is marital property, and what’s not. Let’s value it, and then let’s start talking about how to divide it up.” Then the couple will say, “What’s your opinion as to how the court would do it?” and then they would say, “Well it’s likely that this would be a 50/50 case or a 60/40 case.” It’s the same thing with support. Most people want to know what does the support numbered say based on our income. So, the attorney-mediator doing the evaluative style is going to help you get there. It’s going to go a long way to resolve your case quicker and more fairly.
The final one is transformative. I don’t really know anyone that does that, but it’s a form of meditation where the mediator sits back and says nothing. It’s kind of like a psychoanalyst or something. They will just leave it open for discussion where people can talk about whatever. I don’t think you’re going to find anyone that does that but stay away from that one.
Some other things you should consider – cost structure. Does your mediator charge hourly? Or a flat fee? A lot of attorney mediators will do it hourly because that’s what they’re used to doing at their law firm. Versus, a flat fee. A flat fee, you’ll go into an initial consolation and your mediator will give you a good idea of what you’re going to need and they will say, “look we’re going to do it for a flat fee of $5,000. I’m a big fan of the flat fee, that’s what we do here at SnapDivorce, but that’s really up to you.
The next question to ask yourself is, “Does your mediator also process your divorce?” there’s a lot of mediators who will just mediate the case, help you reach your agreement, and they will draft up the agreement. But then at that point, they will say, “You know what. We don’t process the divorce. You have to go do that yourself.” That’s a little bit of a hassle, so I’d look for someone who does the processing of the divorce too. Here, at SnapDivorce we partner with law firms to process the divorce. It’s a very smooth process, so you don’t have to go out and find someone yourself. It’s all included in the fee.
Finally, it’s as important as choosing a divorce-attorney as a mediator. Choose comfort and trust. You’re going to be working with this person. You’re going to have to trust their advice. You’re going to have to feel like they’re a good neutral party during your mediation discussions. When you go into your initial consolation, just make sure you have a good level of comfort with the mediator. Make sure you feel like it’s someone that’s knowledgeable, that you can trust, and you think you’re going to be able to work with through the mediation sessions.
Those are my recommendations for choosing a divorce mediator near you. Again, focus on comfort and trust, and make sure you’re getting a mediator that’s also a divorce attorney and has been practicing recently. I hope this has been helpful, and I’ll see you next time on Divorce Academy.
