It may surprise you to learn there are no special requirements in California for a person to hang up a sign and promote themselves as a “Divorce Mediator.” The California Evidence Code, Sections 1115-1128 defines what a mediation is, and who can mediate. “Mediation” is simply defined as a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. “Mediator” is simply defined as a “neutral person who conducts a mediation.”
If there is no standardized course of study one must take, with a competency test one must pass, and no governing body one must answer to in order to call oneself a mediator, how can you know what to look for if you want to hire a highly skilled, competent mediator?
Here is the 4 part approach I suggest for selecting a highly skilled mediator that is right for you:
Step 1: Gather Potential Candidates
First gather 2-4 mediator options with your spouse’s involvement. I suggest you each ask for recommendations from trusted sources such as your therapist or someone whose judgment you value and who has experience with a mediator. Next, research your mediator options by looking up his or her client testimonials and peer-to-peer reviews on LinkedIn, Google+, Yelp and see if he or she has an easy to use website that gives off the professional feel you are looking for. If they have blogs, read them. Get to know who you plan to meet ahead of time.
Step 2: Book Interviews
Once you’ve narrowed your options, it’s time to set up face-to face interviews with each potential candidate. It’s best if you and your spouse can go together. I offer a complimentary 30 minute Discovery Session for this purpose, but not all mediators offer this option. Find out in advance if the interview process has a fee attached.
Step 3: Interview Preparation
Prepare for the interview process. You want to know how this mediator is going to work with both of you. Remember, you are interviewing the candidates to perform the task of facilitating your negotiations in a cost-conscious, conflict and time managed way. You may have some concerns specific to your family dynamic such as a special needs child, complex assets, undocumented income, addictions, or other behavioral challenges that will need to be addressed in mediation. Like any good interviewer you need to know what the signs are that you have found the right candidate to mediate your divorce. Here’s some tips of what to watch for while you are interviewing the mediator:
Is the mediator able to give you a detailed history of his or her mediation training and experience, or is he or she skirting the issue and discussing other credentials?
Do you feel listened to?
Is the mediator making eye contact with each of you?
Did the mediator let you finish your questions?
Does the mediator have an informative, educational style as they respond to your questions?
Does the mediator keep the room feeling balanced so that you and your spouse both feel included or, is he or she allowing one of you to take control?
Is their office safe, comfortable, and well equipped (with whiteboard, WiFi, tissue, pens, and pads, water, snacks)? Is their sufficient work space to be comfortable?
Did the mediator offer up any opinions that made either of you feel they were going to play the role of Judge?
Will the mediator correspond with you in a way that works for you?
Is his or her style as a mediator a match for your needs?
What are their hours, booking system, and availability?
Were you given a fee quote and methods available for payment?
Step 4: The Interviews
So you now have your interview checklist all ready it’s time to meet the mediators and ask some probing questions:
What training do you have in the specific field of mediation? A skilled mediator acquires the skills required to facilitate your process by taking hours and hours of training which should have included both theory and skill practice. Ask away!
Is your practice dedicated to mediation? You will often meet divorce attorneys who offer mediation as just one of their services. The mindset of a divorce attorney is be a client’s advocate, to fight and focus on a “win” for his or her client. A very skilled advocate may struggle to switch hats and become the neutral facilitator of what should be a win-win process. You will immediately recognize a mediator who has chosen this as his or her professional path because they will not be able to hide their passion and commitment for what they get to do every day.
What is your style as a mediator? Be on the lookout for a few buzzwords: Transformative, Facilitative, Informational and Evaluative. If the mediator you are interviewing has formal and current training in mediation, they will likely identify themselves as either one of these or a cross-over combination of two of these styles that are taught in formal mediation training. Most couples want a mediator who is a good educator, who will identify and flag issues that may need the support of an expert, and one who takes an active role in facilitating the mediation without interjecting his or her opinions.
Can I bring my attorney into the mediation? Collaborative mediation is a model practiced by some mediators. In that model you would each bring your attorneys to the mediation. Most couples find that approach too costly and unnecessary, however it’s an excellent option for some. All mediators should recommend that you have independent attorney review. Your final negotiated agreements will be drafted into a Marital Settlement Agreement (MSA) that will be filed with the court and become a legally binding order of the court.
What is the breadth and depth of your experience with challenging or complex issues? Don’t be afraid to ask the mediator what his or her experience is with the kinds of issues you feel are specific to the successful mediation of your case. For example, perhaps the primary breadwinner has significant undocumented income or you have a special needs child and there is conflict over treatment options. A good mediator will issue-spot and not be afraid to support “outside the box” proposals. A good mediator is like a project manager--he or she will be a resource hub who can get you to experts who can help support your negotiations. They should be able to help generate options, reality check those options, and help you to build new boundaries and strategies for life after divorce.
What is this going to cost? Divorce has so many hidden costs: therapy, sale of assets, tax consequences etc. your divorce mediation should not add to your stress and uncertainty. Look for a mediator who offers a flat fee. I say that for two reasons: you will know up front how to budget for this unbudgeted expense, and your mediator will not be in a conflict of interest with you. Think about it: if your goal is to get through this process in a cost and time efficient manner, but the mediator is getting paid by the hour, your goals are in conflict with one another.
Mediation is an opportunity to divorce with privacy and dignity. It’s definitely worth exploring. There is no divorce, with 2 willing parties that can’t be mediated, there are only mediators who can’t mediate that couple’s divorce. Choose wisely. How you divorce will in many way define the next stage of your life.