The mediator does not need to be a licensed mediator or an attorney acting as a mediator, just a neutral third party. However, in our experience, an experienced mediator is worth the potential expense, especially if they have a background in handling divorce mediation. They are skilled in resolving differences or disagreements that you may not otherwise be able to resolve. They may also be able to propose solutions that you may not have considered. An experienced mediator understands their role in the process and has the skills and experience to bring about a fair result for everyone involved. Your divorce attorney can likely recommend a mediator that they believe will be well-suited to handle your case.
No. A mediator is a neutral person in the case. For the mediator to be effective, both parties need to be comfortable that the mediator is not taking sides. While a mediator can record what the parties agree to, it is generally understood that when those agreements are put into the form of final divorce documents, there are inevitably choices of language made that easily favor one party or the other. Also, when a mediator prepares final legal documents for the parties, they are acting as a lawyer, and there is an ethical rule that a divorce lawyer cannot represent both parties, because of similar conflict of interest reasons.
Therefore, an ethical ruling has been made in Washington that mediators should not prepare the legal documents for a divorcing couple. While some mediators interpret the rules in different ways, we believe it is a bright line and ask that you have outside attorneys prepare the legal documents to complete your divorce, based on the agreements reached in mediation.
Our attorneys generally start with a meeting with both parties to discuss the process in more depth, as well as explore what issues the couple hope to resolve in mediation. We also want to find out a bit more about the couple’s communication style. If the couple determines that they do want to move ahead with mediation, we will generally schedule several meetings. We usually try to limit the meeting to several hours each as we find that if we run longer, the parties wear down and the meeting becomes less productive.
Often the parties will also find that there is information they need to develop before they can move forward, such as getting property appraised or gathering and sharing financial records. They may also find that they want to meet between mediation sessions with an allied divorce professional such as a financial specialist, a divorce coach, or a parenting specialist to work on specific issues. In the mediation sessions, the mediator will guide them through a discussion of the various issues, helping them get past stuck points, develop alternative solutions, and look for ideas that they feel would be attractive to the other party.
Generally a Settlement Conference will be scheduled by the parties’ attorneys with a mediator they both trust. This kind of mediation is generally done after both sides have done most of their trial preparation and are close to their trial date. Both sides submit letters to the mediator outlining their positions and arguments, as well as information needed to understand those positions and arguments (essentially a shortened version of what they will be presenting to the court at trial).
Because time is short, a Settlement Conference is typically scheduled for a full day, rather than shorter meetings over time. Depending on the style of the mediator, they may take one of two different approaches to the mediation session. In “evaluative mediation” the focus is on how the court would likely rule. The mediator evaluates the positions of both parties and then offers their own opinion as to what they think a court would do, and then pushes both sides towards that resolution. On the other hand, “facilitative mediation” is more like the process in Early Mediation. The focus here is on helping to facilitate the discussion between the parties and helping them each recognize what it will take to find a solution that will be acceptable to the other party.
The initial meeting is only for you to learn about the process and the mediator to learn about you and the issues you need to work on, so there is no need to bring any documents with you at that time. In the course of the mediation, the mediator will help the parties decide what documents and other information they need to help them come to informed decisions and which person should locate what information to share.
Couples who are divorcing are not required to enter into mediation. Even if it is required by local rules, the requirement is waivable.
While not required, mediation is strongly encouraged. Couples who are able to resolve their differences through divorce mediation often are happier with the result and spend less time seeking amendments to their parenting plans and litigating other post-divorce matters.
