Once you have resolved that you would like to use mediation
as an aspect of your case, you need to select a mediator to hire. If
you have already hired an attorney or a coach, your attorney or coach
can assist you in choosing a mediator. However, in many instances, you
may be choosing a mediator without the assistance of another professional.
In either instance, it is important that you understand how mediation
works so that you can choose a mediator that best meets your needs.
Provision of Qualifications:
Minnesota law requires a mediator to provide his or her qualifications
to all potential clients before the clients agree to mediate with that
person. This is usually in the form of a resume, and should be sent to
you in advance of your first meeting or at the free orientation meeting,
discussed below.
Mediator Education and Credentials: Unfortunately
there is no certification or licensing for mediators in Minnesota. However,
in order to be listed in the Minnesota Supreme Court list of "Qualified
Neutrals" under Rule 114, a family law mediator must have received
40 hours of training provided by a certified trainer. Most mediators choose
to be on the Rule 114 list because it allows them to receive referrals
from the Courts. To remain on the Rule 114 list, mediators must also obtain
ongoing continuing education credits - either by teaching or attending
certain approved classes. To find out whether a mediator is included
on the State of Minnesota Rule 114, list, go to the Minnesota Supreme
Court website at http://www.courts.state.mn.us/adr/family.html
Whether or not a mediator is on the Rule 114 list, the minimum
education you should look for is the 40 hour certified training, including
or supplemented by domestic abuse training and continuing education credits.
Also check to see if the mediator you are considering has received any
advanced training.
Professional Education and Experience: Mediators
come from a variety of professions and/or employment backgrounds. In Minnesota,
it is not required that a mediator have any particular professional training.
To be on the Rule 114 list, it is required that the mediator not have
lost his/her license in another profession. Some people feel that, for
financial matters, an attorney mediator is preferred. That is because,
while mediating persons need not follow the law, it is important to have
a mediator who know the "backdrop" of the law in order to make
sure that nothing "falls through the cracks. "Similarly for
matters that strictly deal with parenting, some people feel that a mediator
who has a background in child development work is desirable. In addition,
since skilled mediators sometimes have to assist in communication skills
and assessing the dynamics between the parties, having someone with a
background in mental health may be of assistance to the mediator in trying
to help you find a resolution.
Mediation Teams.
Some mediators work with other mediator as mediator teams.
Quite often these teams are made up of one mediator who is an attorney
and another mediator who has a mental health background. Quite often
these teams will also be “gender neutral”, meaning that there
is one male and one female on the mediation team. The mediation team
can often bring different perspectives and a broader range of experience
to the mediation process. However, since mediators charge an hourly
rate, it is generally, (although not always), more expensive to hire a
mediation team. If you work with a mediation team, you should ask if the
team has experience working together and if they have developed a method
of working together.
Mediation Experience: Depending on the complexity
of your mediation, a more experienced mediator is likely to help you complete
your mediation faster, more efficiently, and with more solid agreements
that do not fall apart after mediation. If this information is not on
written qualifications, consider asking your potential mediator the following
questions: How long have you worked as a mediator? Do you work exclusively
as a mediator? How many cases do you mediate each year?
Experience With Particular Issues.
If you feel like your case presents
particular issues or problems you should see if the mediator has any experience
in dealing with those issues. This is particularly important in issues
such as abuse, either of a spouse or a child. If there is going to be
mediation where there has been even an allegation of abuse by either of
the parties, it is important that there be a mediator present who is skilled
at dealing with those issues. The same is true in dealing with complex
property issues. Some cases present complex accounting type issues relating
to business valuations, tax issues, or complex asset transfers. In these
cases having a financial neutral or even having a mediator with a financial
background, may be beneficial.
Professional Organizations: The primary professional
organization for family mediators is the Academy of Family Mediators.
Any mediator can join this organization, so if this type of credential
is important to you, check to see if your potential mediator is a "Practitioner
Member," which requires certain experience and continuing education.
Also ask whether s/he is active in the organization and has attended any
of its conferences and seminars.
Mediator Style: As explained in another article
on this web site, mediator styles range on a continuum from directive
to transformative. Some mediators specialize in one of these styles. Others
employ all of these styles and use what is necessary to assist the clients.
It is very helpful to use a mediator who promptly provides
written documentation of the work that you do in each session. For cases
with many assets, it is helpful if your mediator also creates a Marital
Balance Sheet. Some mediators also use a computer program to illustrate
various cash flow (support) options. Feel free to ask what documentation
a mediator expects to use in your case.
Orientations or Consultations: Most mediators
will provide a free orientation or consultation, which enables you to
meet the mediator, talk about the process and ask any questions which
you may have. It is usually very helpful to take advantage of this, and
you can use this process to "interview" as many mediators as
you desire.
From meeting with the mediator, you will
get a fairly clear idea of what his or her style, or the style of the
team would be, and you can assess whether this style would be effective
in helping you and your spouse reach a resolution. During that initial
meeting, you should consider asking the following questions:
- What is the charge for their hourly services?
- Do they require an up-front retainer?
- What is their primary mediation style (facilitative,
evaluative, transformative.)
(Bear in mind that almost all mediators have some of each of these
elements.)
- How much mediation experience do they have?
- Do they work with independent financial neutrals or
do they occasionally bring other neutrals into the case?
- What is their method for dealing with and avoiding
impasse?
- Do they consider the use of arbitrators, visitation
expeditors, parental consultants, or other ADR methods if they are
not able to resolve all issues in mediation?
- What is their method of keeping records and keeping
track of the agreements reached in mediation?
- What kind of document will be completed when the mediation
is finished?
- What segments do they usually schedule their mediation
sessions? One hour, two hours, etc.? Do they charge for all of the
time scheduled for the session, regardless of whether the time is
used?
- Are they able to schedule mediation sessions fairly
close together? How much advance notice do they need prior to scheduling
a mediation session?
- Do they occasionally work with the attorneys in mediation?
Have they had success in that regard?
- Are they open to doing mediation by phone conference,
either with attorneys or with the parties when necessary to facilitate
settlement of a case?
- Do they draft a final mediation memorandum that is
easy for the attorneys to convert to a settlement document?
Fees: In terms of cost, doing most
of your work with one mediator, rather than two attorneys, and using your
attorneys on a consulting basis, mediation will be less expensive than
the traditional process. A mediator should provide to you in advance of
your first meeting or orientation, detailed information about his/her
fees. Fees for experienced mediators are often more than $200 per hour
for those with legal background and generally less than $200 for those
with child development background. If your situation is not complex and
you can easily cooperate, you may find a less experienced mediator who
still meets your other criteria. At least as important as fees, in determining
the cost of your mediation, is your attitude. A strong desire to cooperate and to make
agreements which are fair to both parties, as well as prompt and thorough
completion of your homework, will definitely reduce the cost of your
mediation.
How Mediators Break Impasse.
An impasse is described as a situation
in which the parties have tried to reach an agreement but keep getting
“stuck” on a particular issue or a particular area. Part of
what skilled mediators can do is provide you with a variety of ways to
break that impasse. Each mediator has different skills and different
ideas that they use for breaking that impasse. It is fair to ask the
mediator what their method is for helping the parties reach a resolution
in those situations.
Mediators Giving Legal Advice
or Suggestions.
Under a pure mediation model, the
mediator should not give any legal advice, and should not even do anything
to suggest a possible resolution. This is to make sure that the mediator
maintains complete neutrality and to allow the parties to come to solutions
completely on their own. However, many mediators often take a more directive
or evaluative approach. This can be somewhat risky in that if the mediator
provides an opinion (a mediator cannot truly provide advice since he or
she is not representing a client), that opinion may sound like it favors
one party or the other. That could risk the neutrality and make mediation
difficult. Despite this reise, many mediators believe that it is helpful
to give the clients some information or direction, (such as what are the
child support guidelines, what are the basic rules regarding marital and
non-marital property, etc.)
While there are many who would say
that the mediator should not ever give anything that may sound like an
option, another view is that these opinions should not be given without
the clear consent of the parties. If this is going to occur in your case,
you need to be very clear about when and how it is occurring, and you
need to be clear that both parties’ consent to the opinions so that
you do not have these opinions disrupt the mediation process.
Neutrality.
A critical element of the mediation
process is that the mediator be both neutral and that he or she be perceived
as neutral. Mediators do not have any power over your case and therefore
cannot rule in favor of one or the other. In fact, under the confidentiality
provisions as set forth below, they cannot even reveal what has happened
in mediation without your consent.
Most mediators are neutral in the
true sense, since they have nothing really to gain from having one party
or the other benefit. However, mediators, like all individuals, have
personal opinions, and may, even without knowing it, start “taking
sides” because they are more sympathetic with one client’s position
or because they simply believe that the client’s position is correct.
Even if the mediator is correct in their interpretation of the law, it
can be risky if the mediator does not appear to be neutral because he
or she favors one person’s legal position. Quite often, a skilled
mediator will refer those legal questions to attorneys so that each attorney
can advise their client without the risk of the mediator looking as if
he or she has taken sides.
Confidentiality.
Mediation is completely confidential
and the information cannot be revealed to anyone outside of the mediation
without the consent of one or both parties. This is true for many obvious
privacy reasons, but is also true for a special mediation reason. Because
it is important for both sides to be able to talk freely about their settlement
without the risk that the settlement position will be used against him,
it is important that there be a clear understanding at the beginning that
all mediations be completely confidential.
Mediation Record keeping.
One of the more overlooked aspects
of quality mediation is the ability to keep clear records of what has
occurred. When your mediation is successfully completed, you want to
be able to present something to both attorneys that is a clear, comprehensive
record of the agreements reached, and the basis for reaching those agreements.
Some mediators are simply much better at that than others. Consequently,
a mediator who may be very skilled in the sessions but is not skilled
at keeping proper records, can create problems for you. Consequently,
it is important to get some sense from the mediator what their ability
is to keep records during the session and their ability to provide clear,
comprehensive and accurate records between mediation sessions, and at
the conclusion of mediation.
Power Imbalances.
One of the biggest concerns about
mediation is the fear that they will not be able to correct a power imbalance.
Many spouses fear that the other spouse is either a better negotiator
or is intimidating or in some way will get the advantage in mediation.
While this can occur, and can sometimes be a reason to not use mediation,
there are many mediators who are skilled at trying to resolve these power
imbalances. It is fair to ask the mediator about how they resolve power
imbalances and to make a fair assessment yourself as to the mediator’s
ability to try to provide a comfortable environment for mediation so that
both sides are free to take positions that are not based on harassment
or intimidation.
Common Complaints About Mediation
or mediators.
These are some of the more common
complaints that are made about mediators when mediation is unsuccessful.
- They feel that the mediator has taken
a side.
- They feel like the mediator did not
keep proper records of what has gone on.
- They feel that the mediator did not
use any skills to get them beyond their impasse.
- They fear the mediation went on too
long without a final result.
- The parties felt uninformed about
the process.
Even though mediation is generally
successful, and almost always brings better results than litigation, like
any process it can have its faults. You need to be aware of the possible
pitfalls and to try to address the use of a mediator to avoid those problems
wherever possible.
Use of an Attorney During Mediation.
As indicated earlier, it is often
best to have legal representation both before, during, and after mediation.
If you work with a “mediation friendly” attorney, they will
know how to prepare you for the mediation sessions. They will also be
able to answer questions for you between mediation sessions and will be
able to draft legal documents for you that are consistent with the mediation
agreement. These legal documents can then be adopted by the court. If
you have questions about what the law says about a particular issue, it
is important that you talk to your attorney about that as soon as possible.
It would waste time and money to reach an agreement in mediation, only
to have the agreement fall apart once you or your spouse have been advised
in an important legal matter. In mediation, as with all methods of settlement,
you are generally able to reach any agreement that you choose, even if
it does not precisely match the way a judge or court would decide it.
However, you do have a right to know how a judge or court may decide it
so you can make a free choice as to whether you wanted to use those rules
or some other set of standards in determining your mediation.
It is important that your mediator
be able to work with the attorneys. There are some mediators who have
come to see attorneys as part of the problem, perhaps understandably because
they have had bad experiences with attorneys who have interfered with
the mediation process. While this needs to be prevented in your selection
of an attorney, it is also important not to obtain a mediator who discourages
the use of proper legal advice. Most good mediators and good attorneys
can work together as a team to help the clients reach a resolution.
What you can do to Minimize Mediation
Fees.
You have a legitimate interest in
reducing your mediation fees. Even though mediation saves you significantly
over the cost of the dissolution, mediation fees can be expensive if you
are not prepared. Following are some of the best tips to keep your mediation
fees down.
- Do as much preparation and gathering of facts prior
to the mediation session as possible. Mediation is often slowed
down because people do not have all of the facts together. Most
mediators will give you the forms necessary (if you have not already
received them from your attorney), to gather the information that
will be needed for your case. If you are timely and thorough in
gathering that information, mediation will move more quickly. A
significant number of mediation sessions end because the parties
do not have the information they need at the time. This is regrettable
since, it is difficult to get the parties together and, when the
parties are in a position to reach an agreement, it risks the loss
of that agreement when you have to end the meeting and come back
at another time.
- Try to avoid using the mediation to make allegations
or to rehash old matters that can’t be resolved. It is often
tempting during mediation to continue to dwell on prior issues rather
than dwelling on moving forward. While there is sometimes a basis
for venting some of the issues with the assistance of a skilled
mediator or therapist, it can generally be disruptive to mediation
if the parties continue to talk about prior issues without moving
successfully forward. Consequently, you should come to mediation
with a clear goal of how you want to move forward and to focus as
much as possible on addressing those future issues.
- Failure to compromise. Mediation is, after all,
still one of the elements of compromise. Mediation will not work
itself unless you and your spouse are willing to compromise very
significantly on many, many issues. While you and your spouse may
be able to find, with the help of a skilled mediator, many “win,
win” situations, they will generally be situations in which
you will have to give up something that you had hoped you would
obtain.
