When a couple decides they are getting a divorce, or when either spouse begins to feel like it could be an option, it is quite easy for each of them to contact their own divorce attorney and schedule a consultation to have their initial questions answered and to come up with a plan on how they might tackle their litigated divorce. When either spouse hears about divorce mediation as an option, there are some complicating considerations that must be navigated to give the mediation option a chance for success. A big difference between hiring an attorney, and hiring a mediator is that the selection of an attorney in a solo decision and the selection of a mediator is a joint choice requiring both spouse to be on board with the selection. How the selection and vetting is done can be integral in assuring both spouses have trust in the neutrality of the mediator. In this week’s blog I tackle some of the considerations that the mediator, and the divorcing couple should keep in mind as we navigate getting mediation on the table as an option to tackle the pending divorce.
The Initial Selection and Scheduling. In my mediation practice I provide a free initial consultation during which I introduce the concept of mediation, provide an explanation about my approach to mediation and discuss fees and getting ready for the process. I have somewhat automated the scheduling process which allows couples to get the consultation scheduled without needing to speak directly with my office. The scheduling app asks the scheduling spouse to include their spouse’s contact information so both spouses can be included in the scheduling. As I prepare for the scheduled appointment, I look to see if both spouses have been included. We have the greatest chance for success if both of the spouses are included in this first appointment. There are a couple of reasons for this. The first is usually that it indicates that both spouses are playing an active part in the vetting of possible mediators. It is also an indication that both spouses recognize the importance of them both being comfortable with the professional they choose. Finally, it is a sign that the couple is making an effort to communicate with each other which alleviates concerns that something underhanded is going on.
Establishing Trust. One of our biggest tasks as a mediator is to establish trust with both of the spouses. When one spouse makes a unilateral choice on the selection of a potential mediator it can result in the other spouse being distrustful about the neutrality of the selected professional. This distrust can be magnified if the spouse who has selected the mediator has also already met with the mediator for the initial consultation. If you are involved in selecting a mediator I strongly encourage you to communicate with your spouse as you gather your list of potential candidates for the job, and that you coordinate to both attend the initiating meetings to avoid this sense that one of you has gotten a leg up on the other because you have already initiated contact with the possible mediator.
Can One of You Meet to Gather Information. There are a couple of considerations involved with trying to get both spouses at the first meeting. For one, the mediator having the opportunity to explain the process to both spouses is a more efficient use of time. When the meeting takes place together both spouses are privy to the information that has been provided, and you avoid the situation where one of you is wondering what took place behind closed doors at the other spouse’s meeting. While I encourage having a joint initial consultation meeting, I have clients who wish to gather the information about the process and about my approach so that they are in a better position to try to get their spouse on board with exploring the option. When I conduct a consultation with just one of the spouses I make it very clear that it is important that we not get into any specifics about the circumstances of the couple prior to getting both spouses on board. The other spouse can feel like the train has already left the station without them if the mediator already knows particulars about the situation before they have even had the opportunity to meet the mediator.
Crossing the Legal Advice Line and Meeting with One. Before I shifted my practice to all mediation, I would have consultations scheduled with single spouses who were exploring their options with the possibility they would explore using my mediation services while also having the option if mediation was not an option, to hire me as their attorney. My meetings would begin with first exploring if mediation was an option given their situation. If so, I would avoid getting into any particulars, and make certain I did not provide any legal advice to preserve the option of me acting as a neutral mediator. The focus would then be on getting the other spouse in to see if they could agree upon mediation. If I started getting into any particulars and certainly if I proffered any legal advice to the spouse, the ability for me to subsequently act as a mediator was off the table.
I no longer need to worry about this dynamic because I no longer offer the option of being hired as a litigating attorney. If I am meeting with one spouse who is information gathering so they can present the option and information to the absent spouse, I keep my focus on explaining mediation, my process of mediation, my fees, and what should be done to prepare for mediation. When I get the opportunity to meet with the other spouse, I can confidently let them know about the limited conversation I had with the other spouse and can deliver the same information to them. When I have both spouses present then I am more comfortable in answering questions that might begin to get into some of their particulars. My hesitancy in getting into particulars when meeting with just one spouse is solely because I am trying to preserve the comfort and trust of the other spouse who I will need to convince to trust in me for the mediation process to work.
Selecting Together is More Important than you might Imagine. Mediation is a harder process to initiate than simply deciding to go out and get your own divorce attorney. It requires collaboration and working with your spouse to find the right professional that you both are comfortable with. It requires trusting your spouse when the referral to the selected mediator is coming through them. Why should you trust the person you now are divorcing with selecting the professional who will guide you in making the important decisions of your divorce? Don’t they have every incentive to find someone who will favor them?
These questions shed light on why the process of getting a list of possible mediators, and working together through the vetting process is so important. Work together to come up with your list of candidates. Start with referrals from family members or friends who have had a positive experience with a mediator. Do your research online where you both invest some time in seeing what other divorcing couples experiences have been through online reviews. Once you have come up with the list, jointly scheduled consultations with the prospective mediators to assess your comfort with them, their approach and to begin assessing if you can put your trust in them as a neutral. If one of you will do the initial legwork, be cognizant of making sure it is done in a way where your spouse will not feel left out or will not feel like the process has started without them.
Mediation is a great way to efficiently resolve your divorce. To set it up for success, it takes some thoughtful coordination with your spouse. The process of the selection of the mediator can be every bit as important as the mediation process itself as the cornerstone to a successful mediation is the trust of both spouses in the neutrality of the mediator. Don’t underestimate the importance of both spouses being involved in choosing this important professional who will help guide you down the path to resolution.