Two years of marital counseling has come to a crashing halt with the decision to divorce. Your therapist, you and your spouse agree that the differences between you are too great. As much as you both wish things could be otherwise, the final realization is quite simply that the gulf between you cannot be bridged. And now what?
The divorce process looms before you, another uncertainty evoking anxiety and concern. Do you go out and hire a lawyer? Perhaps one used by divorced friends - surely there would be plenty of offerings there. Your therapist has suggested mediation - a word you understand intellectually but find hard to relate to divorce. After all, you don't know much, if anything, about divorce law. You want to avoid making bad decisions that will live to haunt you. Your spouse thinks mediation is worth considering, reminding you of the couples you both know who have exhausted much of their assets fighting each other, fights that seemed to go on forever. Indeed, some keep returning to court after divorce year after year.
After speaking to your therapist again and a few more sleepless nights of weighing the alternatives, you decide to give mediation a try. Afterall, it is a voluntary process and as such can be terminated.
Just when you think all the decision-making is over, you come to the realization that you need to choose a mediator. You and your spouse agree that this is not an easy decision; at the very least, it has to be a person you both feel comfortable with. And so, we reach the subject of this article. How, in fact, do you choose a mediator? We offer some reflections based on our perspective of how deeply important it is to select a mediator that will assist you in crafting a document which may well define your present and a good deal of your future:
1. The Experience of the Mediator: In selecting a mediator, years of experience do count. After all, you don't want to pay for on-the-job training. Your mediator should be dedicated to mediation as a profession and an art. Many mediators wear a number of hats, changing professional roles to meet your request for services. We suggest that the mediators who exclusively focus on mediation are those who bring the most experience to the table.
2. The Mediator's Areas of Expertise: Mediation is a problem-solving process. The dynamics of the process center on the input of the three involved individuals; a skilled mediator facilitates discussions that lead to problem-solving; a skilled mediator resolves conflicts and helps individuals to explore a variety of different approaches and solutions until the couple finds answers that are equitable and workable for the entire family unit.
To maintain the momentum of the mediation process, the mediator needs to be knowledgeable in all the substantial areas related to the divorce settlement. This includes knowledge on divorce law, tax law, child psychology, and finances. The organic nature of the problem-solving process is hindered if the mediator has to call in teams of professionals or get back to you with answers on your tax or other questions. This, of course, does not imply that the mediator will never think that outside help is needed or will be encyclopedic in his/her knowledge base. Yet a mediator with much experience, who stays current and up-to-date as laws and policies change, should be able to move the process forward smoothly and consistently without abrupt stops and starts.
3. The Mediator's Role: It is important to recognize that the actual task of facilitating dialogue between individuals with competing interests is, for lack of a better word, an art. While many individuals declare themselves to be mediators, there are relatively few who have the skill to "bring people to yes" without compromising their ideals or giving in just for the sake of realizing the end. A skillful, experienced mediator does not see success as agreement in and of itself. Success is an agreement that is fair to all parties and will work, today and tomorrow.
4. The Mediation Product: In order for couples to leave mediation with a fair and workable agreement, the mediator needs to help educate both individuals in all relevant areas, including law, finances, and taxes. Decisions in and of themselves are not the goal of the process. In mediation, decision-making has to be based on an understanding of all factors and an ability to see its present and future impact. Then, too, mediation provides an optimal forum for incorporating provisions in agreements which allow for change if and when circumstances provide little alternative.
The recession of 2008 and 2009 was certainly not anticipated in 2007. Yet many individuals are now faced with agreements that can only be subject to adjustment if the couple returns to court. Inclusion of provisions for modifying terms upon the occurrence of catastrophic events opens up an out-of-court dispute resolution mechanism. Then, too, change may not necessarily be a catastrophic event. A child changing his/her educational plans may, for example, lead to revision by the parties in educational funding. And the list of "what ifs" to include in your agreement can multiply, limited only by the imagination of the couple and the mediator.
