The Top 10 Questions to Ask When Interviewing a Divorce Mediator

Divorce is usually sad, but it need not be emotionally and financially devastating if you ask these questions when you interview a divorce mediator.

1. What are your qualifications?

Being a lawyer is an important qualification but doesn’t assure that the mediator has the background and experience to deal with the diverse degrees of emotions endemic to divorce. Therefore, consider choosing a mediator who also has the education, training and life experiences to help you (and your spouse) progress further through the anger, sadness and other stages of grief virtually everyone encounters during divorce. This additional qualification is likely to expedite the mediation and save time and money. Beware of attorneys who hold themselves out as a qualified divorce mediator without having completed any specialized divorce mediation courses or trainings. They don’t understand that the skillset required of a divorce mediator is far more comprehensive than that of just a lawyer.

2. How would you describe your mediation style?

Most mediators adhere to one of two basic mediation styles: the “directive” and the “facilitative” style. The directive style calls for the mediator to do his or her best to direct divorcing couples to a settlement in accordance with the mediator’s perspective of what a judge would decide. The facilitative style calls for the mediator to function as a facilitator, much like a mental health professional, helping divorcing couples process each matter involved in their situation and reach a mutually satisfactory settlement. Experienced mediators use a combination of both styles selectively, while also recognizing the importance of exhibiting humility, empathy and compassion so both spouses are apt to act in a like fashion.

3. Do you still practice divorce litigation along with mediation?

Wearing two hats – that of both divorce litigator and divorce mediator – is likely to be difficult for a mediator to manage. Despite his or her best intentions, a mediator who still litigates divorces in the court system is apt to slip into the role of combatant, unwittingly causing needless divisiveness and disagreements plus extra time and expense.

4. Can I meet privately with you?

Some attorney-mediators exclusively meet in a series of private sessions with each spouse. They shuttle back and forth between the two separate rooms in which each spouse is situated, pointing out the strengths and weaknesses of their respective positions, disclosing or not disclosing whatever information they deem necessary to move each spouse toward settlement. This is the so-called “Settlement Conference” paradigm used by judges to settle cases. This approach may work well with extremely high-conflict divorcing couples, but most mature mediators recognize that it is far too focused on settlement alone as opposed to each spouse making fully informed decisions, and therefore only use private sessions selectively.

5. What about having my own attorney?

It is not uncommon for one or both mediating spouses to want or need the additional support of an attorney, and any prohibition against having your own attorney should raise a red flag. Experienced mediators encourage each spouse to consult with an attorney willing to act as a consultant not combatant, a limited scope of representation under which the attorney does not become of record with the court. Furthermore, these “mediation friendly” attorneys are supportive of informed decision-making during mediation, and are typically willing to consult during mediation and review draft settlement agreements on an hourly pay-as-you-go basis without an upfront and typically large retainer fee.

6. How do you guard against my spouse being disrespectful or dishonest?

Realistically, there is no surefire way to make sure that both mediating spouses are being consistently respectful and totally honest. This is the case in both court-based divorce with lawyers and in mediation proceedings. However, those mediators who at the very beginning of mediation delineate and request that divorcing couples sign written rules and procedures – for example, that they will be totally honest and fully disclosing of all information and documents needed for each to make informed decisions, and that they will do their utmost to maintain an atmosphere of mutual respect, refraining from any threatening, intimidating or otherwise disrespectful behaviors – greatly diminish the likelihood of disrespect and dishonesty, especially when these rules and procedures also include the mediator’s right to suspend or terminate the mediation should one spouse violate them.

7. How long is each mediation session?

Most experienced mediators break mediation sessions into several sessions, each with a time of limit of two or at the most three hours. They realize this time limit is apt to maximize productivity while also providing time between sessions for each spouse to think about and digest the information elicited during mediation. However, some mediators put no time limit on a session; they require that the mediation continue no matter how long it takes for the divorcing couple to reach full agreement. For them, it doesn’t matter that one or both spouses may feel exhausted, pressured or overloaded with information.

8. How much time will it take to complete mediation?

Each situation is different but generally most mediations can be completed within two to three months. However, this time frame depends on how timely each spouse does their homework, for example, completing asset and debt Excel spreadsheets. It also depends on several other circumstances, including the complexity of matters, the level of animosity, how frequently mediation sessions are scheduled, and how quickly each spouse makes decisions.

9. How much will mediation cost?

In my experience, many mediations wind up costing less than $5,000. However, others can cost as much as $10,000. The circumstances delineated in question “8” factor into this variance in cost. However, divorce litigation with two adversarial lawyers in sure to cost much more; indeed, according to a 2014 Wall Street Journal article, on average $27,000. The bottom line here is for you to make sure to ask for a written cost estimate when interviewing a mediator.

10. Do your services include the preparation of filing of all court documents?

You want to make sure that your mediator adequately addresses the preceding questions but also is legally permitted to prepare all the court documents required in the locale in which you are situated. This assures continuity and will likely decrease the overall cost of your divorce.

In conclusion, you should never hesitate to ask these questions and any others you may have when interviewing a divorce mediator. A reputable and trustworthy mediator will welcome your questions.

– Oliver Ross, JD, PhD