The ABC’s of Mediation – Part I: The Mediation Process

Rosalyn A. Metzger, Esq., a member of the Kearns Rotolo Law team and a Family and Divorce Mediator certified by the New Jersey Association of Professional Mediators, is the author of a three-part article on Mediation, an alternative to traditional divorce proceedings. This week, Ms. Metzger explores the Mediation process.

You are thinking about getting divorced. You do your research on the internet. You may contact an attorney, or maybe you just want to go straight to a mediator. How does all of this work? Do you need a mediator and an attorney? But wait – isn’t mediation supposed to save money? How can using three people – an attorney for each spouse, plus a mediator – be less expensive than using just one? Good question!

Mediation is a process where you and your spouse, or partner, elect to forego the nastiness and expense of litigation to try to work things out. Your main concern, as you tell the mediator, is for your children. You want to spare them the fallout of a high conflict divorce that will wind its way through the courts over a period of years. Good for you!

So what is mediation all about, how much does it cost, who is involved – you have so many questions! I will help you gain a basic understanding of what mediation is and how it will keep your family “intact” even though you will ultimately be living in two different households.

The Mediation Process

The mediation process is a form of alternate dispute resolution (ADR) – a fancy term for working things out amicably. A neutral third party (the mediator) will assist you and your spouse or partner in reaching agreements on all, or most, of the important issues facing you in a divorce. This doesn’t mean that mediation is painless, or that you and your spouse or partner won’t have disagreements. The process simply allows you sufficient time to work through your emotional issues until you are both comfortable that, although you have “given a lot,” you also “got a lot.” What is important to you may not be so important to your other half.

Typically, the mediator will meet with both of you for an initial consultation, which can cost anywhere from nothing (some mediators offer a free consultation) to the mediator’s hourly fee. This allows you and the mediator to see if you are all a “good fit.”

The mediator will likely give you a little of his or her background so that you are aware of whether this is their first or their 251^st mediation. The mediator does not have to be an attorney; she or he can be a neutral social worker, therapist, or a financial professional.

It is helpful to find out all you can about your mediator so you can assess his or her strengths and weaknesses. Has the mediator practiced family law? If so, for how long? Is he or she still litigating/doing social work/providing financial guidance? Do you have any friends who have used him or her? Were they happy with the outcome? These questions can help you decide if you have the right mediator for your specific situation.

The mediator should explain the mediation process so you know what to expect. Do you have to provide a retainer to the mediator? If so, do you share it equally with the other party, divide it another way, or will it come from joint funds? What happens to that retainer? Does it go into a trust account to be billed against the mediator’s hourly rate? Or do you need to provide a check or cash at the end of each session? Do you have to pay for time the mediator puts in if she or he works on your case in between sessions? How will you know that? Will they bill you? And will billing be monthly or some other way?

Often the mediator will ask each of you questions to help you get started. Alternatively, if you know what you want to say, you are typically invited to state your goals and objectives in the mediation process. The mediator will gently guide you through the process and should not permit either party to control the discussion or the mediation. Very often, one party is not as vocal as the other. That’s okay. An experienced mediator will pay attention to the dynamics of your mediation to ensure that everyone’s voice is heard and that all concerns are addressed.

My preference is for the parties to each be represented by an attorney. Often, each party will meet with his or her attorney at the outset of the mediation and keep them on a small retainer so that they can refer to counsel during the process. Your attorney may want to be present during the sessions  but ultimately you decide whether or not that is the way you want your mediation to proceed. It is imperative, from my view, for each party to have the protection of their own attorney’s advice so that they can receive legal counsel during the mediation process.

Next week: “The ABC’s of Mediation – Part II: Financial Issues”