Choosing the Right Mediator for a Collaborative Divorce

While the mediation process can be a much more constructive way to resolve many family law disputes than litigation, the appropriate selection of your mediator can play a significant role in determining the success of your mediated divorce or child custody case.  Contentious litigation of a divorce is stressful for the parties and their children and often leads to animosity and conflict that lasts long after the divorce judgment or creation of a parenting plan.  When parties can work amicably in a mediation setting, it may reduce this stress and promote more stable enduring resolution of divorce issues including property and debt division, alimony (spousal support), parenting plans and other issues.

Because the choice of a mediator can have a significant impact on both the effectiveness of your mediation process and the outcome on substantive issues, our New Jersey family law attorneys have provided suggestions to those considering a mediator for their divorce or other family law matter:

Objective Balanced Playing Field

A mediator is not intended to be an advocate for either party but rather someone who facilitates negotiations between spouses based on an accurate understanding of their rights and the law.  The best mediators are like a referee whose job is to ensure that both parties play be the rules and understand what is permissible.  Further, solid mediators may facilitate an agreement, but they understand that the dispute is about the parties resolving their issues rather than the mediator dominating the conversation and negotiations.  While the mediator may protect either party from being taken advantage of by the other party to a divorce, the mediator should be neutral and fair to both sides.

Education and Facilitation

One of the biggest obstacles to divorce settlements among parties that are not represented by a New Jersey family law attorney is that they do not have realistic expectations about how a divorce court would likely rule on certain issues.  The most effective family law mediators educate spouses about the range of possibilities if a family judge were to rule on an issue and inform the parties regarding the most typical outcomes.  This allows negotiation based on accurate information so that parties are less inclined to take positions that are unrealistic and unproductive.  However, the most effective mediators will recommend that you still have a negotiated marital settlement agreement reviewed by a divorce attorney so that each party has an additional level of protection of their interest.

Affordable and Efficient

An important advantage of mediation is that it provides an efficient easier way to resolve family law issues.  The cost, time-savings and efficiency that a mediator brings to the process is an important part of the evaluation process.  Inquire about the fees up front, including whether the mediator charges a flat fee or hourly rate.  Most mediators will include the process of filing the paperwork and formalizing your marital settlement agreement into a divorce judgment if you will be pursuing an uncontested divorce.

Knowledge of Complex Financial and Parenting Issues

Because you mediator will be facilitating an agreement on property distribution issues and parenting plan arrangements, the mediator should have significant experience handling these issues.  Certain property division issues can be extremely complex, such as valuing stock options, closely held corporations or professional practices.  While the mediator may recommend use of a business valuation expert or forensic accountant, the mediator should have experience in handling these types of issues both in mediation and the divorce process.  The mediator should also be familiar with more complex child custody and visitation issues as they relate to your divorce, which may include parental move-away issues, effective co-parenting, the full range of time sharing schedule options and other factors relevant to your child custody dispute.

Genuine Interest in Well-Being of the Parties

A key advantage to mediation is that it is sometimes viewed as a “kinder and gentler” approach to dissolving a marriage.  This benefit is best realized if the mediator is not simply a dispassionate referee of your disputes but has genuine compassion for the parties and their children.  The mediator should care about sending both parties home feeling happier and less stressed about their financial future and their future parent-child relationship.

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