Mediation – The Basics - Lisa J. Cappalli, ESQ.

What is it?

Mediation is a respectful, private and creative way to resolve family disputes without court interference. Whether a couple is dissolving their marriage or ending a romantic relationship that may have resulted in children, mediation is most likely a far better alternative than litigation.

What isn’t it?

Divorce mediation isn’t therapy or marriage counseling. It’s not designed to preserve or reconcile marriages. Most people who go through divorce mediation end up divorced. (But studies show that most of the couples who successfully complete divorce mediation with a skilled mediator remain satisfied with their settlements and abide by them.)

How it works?

Divorce mediation involves a mediator serving as a go-between, consultant, advisor and facilitator to the two spouses, in helping them through the legal, parenting and financial issues of divorce. I will remain impartial and evenhanded in assisting a couple reach an informed and voluntary settlement. While I tailor my services to the needs of each divorcing couple, our mediation generally follows a seven step process:

Make the No Court Pledge. The three of us sign a contract agreeing we’ll use our best efforts to resolve all divorce items without court interference.
Create the professional team. Sometimes the divorcing couple chooses to get additional value by working with a neutral expert such as an appraiser, accountant or therapist, or with their own consulting attorney.
Identify and prioritize interests. This will help both spouses remain productive and forward focused as we proceed through the mediation process.
Gather information. The three of us craft and implement the plan for gathering the financial and other information.
Brainstorm ideas. At this stage of mediation, all ideas are encouraged and have potential.
Evaluate options. We’ll analyze which ideas best satisfy the couple’s interests and seem realistic in light of the facts.
Finalize financial and parenting choices. I will draft an agreement to be submitted to the Superior Court for approval so that it will become the couple’s court order.

Are you the lawyer for both spouses?

No. Although I’m a lawyer, when I’m working for a couple as their mediator, I don’t have an attorney client relationship with either spouse. This means that rather than giving either spouse legal advice, my job is to educate both spouses about the law and help them create divorce arrangements that meet their needs and which a court will approve.
As a mediator, my communications with both spouses are not privileged or protected by the law. (Although I won’t voluntarily share information about the divorce with anyone other than the spouses unless both spouses ask me or I’m otherwise required to.)
As a mediator, since I’m neutral, I won’t keep secrets between the spouses.
As part of our contract, both spouses will agree that they won’t ask or require me by issuing a subpoena or summoning me to court, to disclose mediation discussions and communications.

What are the advantages of mediation?

Self Control and Determination. The divorcing couple rather than a judge, lawyer, mediator or “expert” make the important divorce financial and parenting decisions.
Privacy. The “work” is done in the mediator’s office rather than the courthouse. The couple’s court file will be minimal and typically only one court appearance will be required.
Better More Creative and Lasting Settlements. The post-divorce financial and parenting arrangements, being created by the couple, will address their particular needs, goals and concerns far better than something a judge might order on his own. Also, by taking ownership of their settlement, it is more likely that both spouses will follow it after the divorce.
Time and Cost. Mediation generally is less time-consuming and less expensive than a traditional litigated or adversarial divorce. When two spouses are open with each other and communicate directly in the presence of each other and a competent mediator, the result likely will be more expeditious and less costly (both in economic and emotional terms).

What are the disadvantages of mediation?

If mediation fails, stress may be prolonged as the spouses move from mediation into the collaboration or litigation process.
When they initially contact me, some people are uncertain about whether they want mediation, a collaborative divorce or a litigated divorce. They say that they want me to be involved either way, but, if we start mediation and it fails, I would be disqualified from representing either spouse in litigation or a collaborative divorce.
If there’s an imbalance between strength and experience of the two spouses, whether in emotional strength or experience with children or financial matters, the weaker and less experienced spouse is more at risk.
As the mediator, I am not in the customary lawyer’s role as an advocate. I must remain impartial. Spouses in mediation sometimes have a hard time in dealing with this fact, expecting traditional loyalty and advocacy they associate with “their lawyer.”

Is divorce mediation always a good option?

Mediation is appropriate when both spouses:

Want to be constructive and exercise respect, good faith and reasonableness toward each other.
Want to put their children first.
Are willing to truthfully and fully share all relevant financial and other relevant information.
Are emotionally ready and able to negotiate at the same table as their spouse in the absence of their own attorney.
Have a generally trusting attitude toward each other, especially regarding financial facts and issues. Mediation can often be successful even when one spouse was involved in a romantic relationship outside the marriage if the trust level regarding finances remains high.
Have a relatively similar level of sophistication about family matters, including children and finances. This factor isn’t always absolutely necessary, because, if the other conditions are met and the less sophisticated spouse can become sufficiently educated during the mediation process, the result is normally satisfactory.

When might divorce mediation be a bad choice?

If:

Ongoing domestic violence, verbal abuse or intimidation is present in the marriage.
Either spouse expects the mediator to tell him/her what to do.
Either spouse has a mental or physical illness or addiction that’s not being managed.

Conclusion

Mediation requires three people willing to work together to end a marriage in a private and respectful manner. The success of mediation depends upon the candor, desire, sensitivity and competence of the three participants. If both spouses are committed to acting in good faith, dealing openly, respectfully and reasonably with each other, and if they retain and work with a competent and concerned mediator, the result should be positive.