|The Mediation Alternative
Mediation is emerging as a viable
alternative to standard divorce litigation. Here's what you need to know.
By Brad Marcoux
While death and taxes may be the only guarantees in life, acrimony and financial
woe almost always accompany an adversarial divorce. It isn't surprising, really: after
all, the legal system by its very nature pits people against each other, seeming to offer
the possibility of only one "winner" and little opportunity for compromise. The
search for a way to make the process of divorce less painful has led many to mediation --
also known as "assisted negotiation" or "alternative dispute
Unlike traditional divorce proceedings,
mediation takes the approach that individuals who were once able to organize their lives
together can also arrange to live them apart. It's a different way of viewing divorce, and
one with many advantages. But there are a few concerns that need to be addressed before
you can be sure that mediation is for you.
WHAT IS IT?
Sam Margulies, a practitioner member of the
Academy of Family Mediators (AFM), an accredited member of the New Jersey Association of
Professional Mediators, director of the New Jersey-based Institute for Dispute Resolution,
and the author of Getting Divorced Without Ruining Your Life, defines mediation
as "a facilitated agreement between ex-spouses on the important issues of children,
money, and property." The key word here is "agreement" -- you and your
future ex create an agreement that both of you can live with. The mediator is simply there
to keep you on track, assure negotiations are fair, and make suggestions when roadblocks
"The focus is on both parties
maintaining control," Margulies maintains, "not on giving control to surrogate
representation." Dr. Barbara Landau -- a psychologist, lawyer, mediator, president of
the Toronto-area mediation organization Cooperative Solutions, and co-author of The
Family Mediation Handbook -- agrees. "Mediation is different from litigation in
almost every respect. In litigation, lawyers speak on behalf of the parties involved. In
mediation, lawyers act as advisors, but the parties speak on their own behalf so that the
agreement reflects their personal needs and perspectives."
While mediators handle each case
differently depending upon their personal style and their training (an attorney-mediator
might handle things very differently than a therapist-mediator) there are generally a few
common stages. An initial meeting with you and your spouse is arranged to assess the
dynamic between both of you, explain what you can expect, and discuss costs. Some
mediators may also have you fill out a questionnaire or come in individually, based on
what kind of relationship you currently have with your spouse and the mediator's personal
preferences. "The boundaries of the process are also explained," says Kathryn
Somers, a lawyer and mediator in private practice in Chicago. "It's made very clear
that, while we can make referrals for any type of help people may need, this is about
getting on with their lives -- it's not therapy or a consultation with a lawyer."
Once this initial stage is complete, you'll
set meeting times (usually weekly, but you can arrange any schedule that suits you),
ground rules (no degrading or insulting language), and goals (usually regarding support,
asset division, and visitation). "At this stage, as in the rest of the process, the
decision-making is left in the hands of the two people who have the most at stake,"
says Jerald Kessler, a Highland Park, IL mediator and president of the Mediation Council
of Illinois. "The parties control the pace themselves, moving ahead as they feel
Next, information-gathering begins: your
mediator will need documentation for property, assets, and debts, as well as tax returns,
bank and pension statements, and any other paperwork relating to your marriage and
finances. Based on the initial assessments and this documentation, a decision is made as
to whether financial, legal, or emotional experts need to be consulted, and the actual
While individual cases vary, most cases can
be resolved in a couple of months. "An experienced mediator will know in the first
one or two sessions if mediation is going to be possible," says Dr. Carol A. Butler,
a Manhattan-based mediator, psychotherapist, and co-author of Divorce Mediation Answer
Book. "In most cases, the issues are resolved in four or five sessions. I can't
imagine seriously protracted divorce mediation except in very unusual circumstances."
Alan Frankel, a psychotherapist and divorce mediator who does team mediation with mediator
Jill Sanders-DeMott, J.D., in Mt. Kisco, NY, estimates that "between 85% and 90% of
our cases are successful, and we've usually finished up in between three and eight
sessions. It's much faster than litigation for everyone involved."
This short duration highlights one of the
most appealing aspects of the process: although mediators generally charge between $100
and $450 per hour -- about the same as a lawyer -- the speed can make it tens of thousands
of dollars cheaper than fighting it out in court. "While I estimate that somewhere
between two and five percent of all divorce cases opt for mediation right from the
beginning, most of those that go the legal route end up settling before trial," says
Margulies. "They end up negotiating anyway -- mediation is simply a supercharger for
getting a settlement."
There are other advantages as well: since
you're the one who is crafting your own agreement, you can arrange for all of your
concerns to be addressed to your satisfaction before the process ends. Because of this,
you're more likely to be happy with the final result, and be more willing to follow
through with your commitments than if your settlement had been decreed by a court. No one
likes being told what to do, after all. And you can arrange visitation and support that's
beneficial to your kids -- a massive plus, considering how harmful a disputed divorce can
be for children. And there aren't any worries about your agreement not being legally
binding, as the final agreement is drafted by the mediator into a "memorandum of
understanding" that is then hammered into legalese by your lawyers.
Saving time, money, and perhaps your
dignity are all wonderful; these potential advantages may make mediation seem like the
perfect way to end your imperfect relationship. But, as with anything else, there are
complexities that you should be aware of before you dive in headlong.
One of the biggest bricks to be hurled at
mediation is that of power imbalances. It's felt by some that if one person in the
relationship has dominated the other in the past, the weaker party is put at an impossible
disadvantage when trying to represent themselves. It's a valid worry, especially if you
feel that you're the weaker party -- and even more so if there is or has been abuse in the
past. But it's also a problem that a good mediator should be able to correct, according to
Desmond Ellis, a professor and coordinator of the Dispute Resolution Program at York
University in Toronto who has researched power distribution in mediation. "Power
imbalances are a big issue politically, theoretically, and with respect to practice,"
he says. "The difficulty is that people often confound the possession of resources
with power. It's generally accepted in society that men have more money and resources, and
can debate more effectively, so they therefore have more power. But the fact is that the
possession of resources only equals potential power. It's how they are used that
determines where power lies. You also can't generalize from an individual's position in a
gender group to their position of power." Ellis' research has shown that power
imbalances -- from resource possession to intimidation or even outright physical abuse --
does not have to rule out mediation as an option. Training for mediators in recognizing
and dealing with power imbalances is the key, he says. "There are various specific
interventions mediators can use to influence the balance of power. With proper training,
they can ensure that each party feels confident in presenting the merits of their
QUESTIONS TO ASK
In your initial interview with the
mediator, they will be looking for specific signs that your case is appropriate for
dispute resolution. You should take advantage of this initial consultation to assure
yourself that the mediator has all of the qualities necessary to bring your marriage to a
fair and balanced end. Here are some of the essential questions you should ask:
- What is your training and experience? Most organizations
require mediators to complete at least 30 hours of training (and, in some cases, extra
hours of schooling in domestic violence awareness), several hours of negotiation, and
several cases. You should be looking for someone who has done at least ten divorce dispute
resolutions. Ask if they have experience with cases like yours (especially if you have
some unique circumstances to negotiate) and what training they've had.
- What organizations are you affiliated with? You can follow
up with phone calls to find out some information about those organizations (see "How
to find a mediator" at the end of this article).
- What is your approach? You should get as much information
about the process as the mediator gets from you about your case. Some mediators hold
individual meetings, while others use questionnaires or other methods of screening. Ask
questions, and be sure you're clear and comfortable with everything you're told.
- Do you have any biases? It's a blunt question, but a valid
one: everyone has viewpoints that skew their perspective. Ask them how they feel about the
role of mothers or fathers, or about the care of children.
- Should our children be involved in the mediation process? If
- Should new partners be involved in the process? If so, how?
- What is the cost?
- How much time do you
- feel the process will take? n Should other experts be
- What role will my lawyer play in the process.
When used by a skilled and sensitive
mediator, techniques such as shuttle mediation (where the parties are separated and the
mediator "shuttles" messages between them) and precautions such as separate
arrival and departure times can often effectively deal with the fear of psychological or
physical violence. More general fears of a gender advantage can usually be balanced out by
a trained individual mediator. There's also the option of a team approach such as Alan
Frankel and Jill Sanders-DeMott use. "We decided to work as a team," says
Frankel, "because we didn't want anyone feeling outnumbered. Our method creates a
gender balance that couples seem to really appreciate." Deborah A. Vaupen, an
attorney, mediator, and partner in the Santa Monica-based Alternatives: Divorce Mediation,
works as a team with therapist and mediator Dr. Edward A. Dreyfus for essentially the same
reasons. "There are so many legal and emotional dynamics at play, and we feel that
the female/male model offers a balance for our clients. It avoids anyone feeling like it's
two against one."
Jerald Kessler points out that the mediator
has a vested interest not in taking sides but in "seeing that the process is balanced
and fair. We gain nothing by being unfair." Because a mediator's business can rely
heavily on word-of-mouth, crafting an unbalanced settlement would likely cost them both
business and reputation. And there's also an incorrect assumption made here: that the
mediation process will be less empowering to an individual than a legal battle. Dr.
Michael Benjamin, a comprehensive family mediator and mediation specialist with the
Toronto-area mediation organization FAME (Family Assessment, Mediation, and Parent
Enrichment), sees the issue differently. "Mediation can be very empowering in some
cases," he says. "It can give a spouse a voice that won't be heard in court.
There are of course situations where mediation is inappropriate, but if I want a couple to
continue working together beyond mediation, I can't allow any power imbalances to
Those who voice concerns about power
imbalances, however, tend to worry less about cases where the problem has been identified
than a scenario where a mediator is oblivious to it. "There is real concern if one
person is feeling intimidated -- especially if there's been domestic violence," says
Frankel, "but we're trained to screen for and spot these imbalances so that we can
try to restore that balance -- or screen out cases that are inappropriate for
mediation." This screening begins with the very first phone call to the mediator's
office and continues until the process is complete. "With the very first phone call,
I make sure to ask specific questions about violence, drug or alcohol abuse, or fear of
reprisals or for the safety of the children," says Barbara Landau. "I listen to
direct answers, but I also listen for silences or hesitations that can tell me a lot about
whether there are abuse issues." While each mediator's methods of searching for both
subtle and overt power imbalances may be different, a good mediator will take the time to
inquire about potential imbalances and formulate a plan to compensate for them.
There are cases in which mediation is
inappropriate, of course. "I disqualify people from the process if I see a gross and
irreparable imbalance," says Sam Margulies, "or if there's a cognitive or
emotional deficit too broad to traverse. But a good mediator can balance most power
imbalances." Most mediators agree that if there is active and continuing violence, or
a fear of violence, mediation is inappropriate -- but all stress that each case must be
individually assessed, and broad generalizations cannot be applied. "The AFM and
Ontario Association for Family Mediation's polices are that there is a 'rebuttable
presumption against mediation,' in cases of abuse," says Landau. "This means
that you must show in each case that the parties are capable of mediating without
duress." Most people think that mediators start with the assumption that mediation is
appropriate for all cases, but the opposite is actually true in cases of domestic
violence, according to Landau.
Even though the final agreement is subject
to lawyers' approval, there is still a danger of your ex-partner not making a full
disclosure of assets. "The legal system does have a chance to engage in discovery
that is not available in mediation," admits Benjamin. But such concerns are rare,
and, since mediation can be abandoned in favor of a trial at any time, any apparent
dishonesty can be dealt with in the old-fashioned manner. Besides, as with domestic
violence cases, if you don't trust your ex in the first place, you're unlikely to seek a
negotiated settlement. "Mediation does have an advantage," says Vaupen, "in
that it tends to be self-filtering."
Mediation offers many significant
advantages to the traditional divorce process. It can save time and money, and allow two
people who have decided they no longer wish to share all of their lives to negotiate how
they will cooperate, and how they will work out the details of living apart. Although
there are some concerns -- the lack of government regulation and the possibility of an
unrecognized power imbalance leading to an unfair agreement -- generally speaking,
mediation can let you and your soon-to-be-ex make arrangements that can live with today
and in the future. If nothing else, alternative dispute resolution is an alternative worth