The Role of the Mediatior

Getting divorced is like being lost at sea. The decisions you make are crucial; a mistake can cause serious damage. You often do not know which way to turn.

Couples going through divorce are often caught up in a hurricane of emotional turmoil. They can't think clearly. They can't see possibilities crucial to their well-being. They're so hurt and angry that rational discourse doesn't have a chance.

The mediator is like coast guard captain helping you navigate. He watches your progress, points out when you're about to go off course or run aground, and guides you through the treacherous turns on your way to safety. He also helps you make reasonable choices in a cooperative atmosphere rather than in one rife with demands and accusations.

Although the mediator has many tricks of the trade he uses to get you through the hurricane, his role is limited. There are things a mediator can do and things he can't.

Stays Neutral

The definition of a mediator usually reads something like this: "The mediator is a neutral third person who helps disputing parties reach an agreement."

Neutrality is essential. If either side believes the mediator is biased, he loses his effectiveness in resolving the disputes. He must treat each side impartially.

Maintaining neutrality also means that the mediator can't be a legal representative of either side. Therefore, neither party's lawyer can act as mediator.

Helps You Make Your Own Decisions

In mediation, you make your own decisions. The mediator doesn't make them for you. To return to our metaphor of sailing through the hurricane, he doesn't decide where you should go. He just helps you figure out how to get there. He helps you gather the information you need, evaluate options, consider possibilities, and talks with both of you. But he doesn't tell you what to decide.

Sometimes people confuse mediation with arbitration. An arbitrator's role is to hear a dispute and make a decision; the parties decide ahead of time whether that decision will be binding. A mediator, on the other hand, decides nothing other that the procedure for the mediation. He may coax, cajole, reason with, question, share stories and experiences, listen, and sympathize, but he cannot make decisions on legal matters. Your mediator is trained to effectively:

1. Generates Options Because your mediator has encountered situations similar to yours many times before and is not caught up in the emotional turbulence of your divorce, he's able to think of alternatives you haven't considered - often a great help in breaking impasses.

2. Analyzes Proposals Many clients bring to mediation agreements reached on their own. The mediator may see difficulties in your agreement that you've missed. For example, many couples don't think of the tax implications of their proposals and aren't familiar with the ways they can divide and transfer assets.

3. Shares Legal Knowledge Sometimes a couple will announce that they've agreed to joint custody of their children without realizing what that term means. Or they tell me that they've agreed to a property division when it's clear that they don't understand their legal rights. My job then is to explain what legal terms such as joint custody really mean. Clients don't have to insist on all of their legal rights, but they shouldn't agree without knowing what those rights are. The mediator may also raise questions about legal issues the couple hasn't considered. Who gets the tax dependency exemptions for the children? Who will carry the children's medical insurance and pay for uninsured medical expenses? If one person is to pay the other money, when and how will that be done? Will that debt be secured by property?

4. Offers Evaluations Sometimes spouses who disagree on an issue ask the mediator how he thinks a court would decide it. In effect, the couple is asking the mediator to provide an evaluation. If he's an experienced family law attorney, his opinion may be valuable in helping each party decide when to take a stand and when not to.

5. Prepares Documents May prepare some or all of your legal paperwork.

Guides You Through the Legal Process

Your mediator's role is to guide you toward settlement. He helps you gather all the information you need to make informed decisions, keeps you on track as he leads you through the legal issues, suggests options you may not have thought of, minimizes unproductive discussions, and keeps you talking to each other in a way that leads to agreement and settlement.

Conferring with a Family Law Attorney

When I recommend that clients meet with their own attorneys during mediation, I often see a surprised look on their face. "That's why we're mediating," they explain. "We want to avoid lawyers. They'll just charge a lot of money and get us fighting with each other!"

Having warned you of the dangers of litigation and the traditional adversarial contest, why am I now urging you to see attorneys? Because lawyers have other skills to offer as advisers and drafters of documents and you may need their help in mediation. Moreover, you can take advantage of their services for a modest cost and without being drawn into battle.

What can a lawyer do that your mediator cannot? Your mediator's job is to help you and your spouse reach an agreement, but because he is neutral, he cannot advise you as to whether your agreement is wise. Remember that, in sailing through the divorce hurricane, you choose your destination; your mediator merely helps you get to your destination.

Your lawyer, on the other hand, helps you think clearly about your destination. She's concerned about your needs; She's there to look after your interests by advising, coaching, and commiserating. You don't have to take her advice, but her knowledge of the complicated divorce world and her focus on your welfare may make her a valuable resource.