TO LISTEN TO EPISODE 4, CLICK HERE.
Hi, everyone, and thank you so much for tuning it to the Divorce Field Guide. My name is Ani Mason and I’m a divorce lawyer and mediator, and I’m also the creator of this podcast.
Today, we’re in Episode 4. In the last episode, we began talking about one of multiple different ways that you can negotiate in your divorce. We talked about, specifically, what I call the DIY Divorce process. That basically means a divorce process in which you and your spouse are really quarterbacking the process together, you’re not working with outside attorneys, you’re not working with an outside mediator, you’re really doing things on your own as the title suggests.
Before we dive in to talking about mediation today and, time permitting, talking about collaborative law, I wanted to just lay a little bit of groundwork, do a little bit of summary of the first three episodes really quickly to just give some context to our discussions.
So, as we have talked about in the first three episodes, your divorce, at the end of the day, is a negotiation. Because of the importance of the topics that you are talking about and resolving as part of your divorce process, it’s really important and helpful for that negotiation to be as set up for success as it possibly can be and to go as well as it possibly can go.
One of the things that’s really important in strategizing about how to set your divorce process up for as much success as possible is to understand that there are different ways to negotiate the terms of your divorce, and I refer to those often as “divorce processes” or “divorce process options.” Each of the different divorce process options has its different attributes, its different pros and cons, and it’s more or less well-suited to a particular couple’s situation. So, what we’re doing at the outset of this podcast is we’re talking through each of the different divorce processes, and we are describing them and helping you understand each of them so that you can make the most advantageous decision possible about what divorce process you want to select for yourself and your spouse.
DIVORCE MEDIATION: OVERVIEW
Today, we are going to be talking about mediation, which is one of my favorite subjects. What I want to cover, in the same way that I did with our discussion of a DIY divorce, what I want to cover is a basic overview of what mediation is, to talk a little bit about who is involved in a mediation process: Who talks to whom throughout the course of the mediation? Where would a mediation take place? Where would your negotiation sessions take place? What happens when you do come to an agreement? What does the drafting process look like? What’s the level of attorney involvement in a mediation process? How likely are you to be spending time in court? If you choose to go through a divorce mediation process, what are some of the pros and cons of the process? And, what kinds of cases is mediation ideal for?
DIVORCE MEDIATION: THE MEDIATOR’S ROLE
Mediation, obviously, it’s a negotiation process, but it’s one in which you and your spouse are assisted in negotiating the different subjects you have to talk through by a third-party neutral who’s called the mediator. The mediator’s role is to help you and your spouse in a couple of ways – one is to help you and your spouse know what you have to talk about and resolved in order to help you get legally divorced in your state.
When you know what topics you need to cover, another important component of a mediator’s role is to help you and your spouse talk through the different issues that you need to talk through, and cover those topics in a way that is effective and productive, which may not be challenging for you, but can be challenging for many couples who are going through a divorce – communication can be strained, it can be hard to hear the other person clearly, it can be hard for the other person to hear you clearly, and that doesn’t make for an ideal set up in a negotiation. So, part of the mediator’s job is to help you guys hear each other clearly and talk through the different issues you need to talk through productively.
Then, depending on the mediator’s background, and I’ll say something about that in a second, but if the mediator is an attorney who is knowledgeable about matrimonial law, he or she can also play the role of informing you of what divorce law says on a particular topic you’re discussing in your state.
So, a couple of remaining points on just the general overview of what mediation is and what a mediator’s role is. A mediator is a third-party neutral similar to a judge who is also a third-party neutral. However, a mediation process is completely voluntary and that means whatever the mediator’s personal opinion, whether or not they have one, but if they do as to how you and your spouse should resolve a particular issue, the mediator is never able to impose a solution on either of you.
I think for most people that’s reassuring, but I know that that can be frustrating to people when they have been stuck around a particular issue in mediation for some time. They may want to have the mediator just tell them what to do and that’s really not the role of a mediator.
We will talk, in a later episode, about a process called arbitration. Basically, it’s a process in which the arbitrator could say to you and would say to you, “Let me tell you what you’re going to do. You’re going to do XYZ.” A mediator’s role is not that. They can certainly offer examples to you of what other couples in your situation have done on similar topics, but, likely, they would be offering multiple examples so as not to overly balloon on one solution or not. They really try to be neutral in that way and non-directive.
Then, the other thing to be aware of, and I mentioned before, that if your mediator is a matrimonial attorney as well, he or she could certainly share information about the law, but you want to keep in mind that the mediator’s role is always as a neutral. So, their role is, really, if they’re sharing information about the law or about anything else, their role is not to advocate for either you or your spouse. Their role is to share information with you, if they’re talking about the law, in a neutral capacity, to educate you about the law so to speak, but not from the perspective of an advocate. That would be more the role of an attorney and we’ll talk about that in a little bit.
DIVORCE MEDIATION: WHO’S INVOLVED
So, who is involved then in a mediation process? Well, obviously, you and your spouse. That’s true for every process we’ll talk about. In addition to you and your spouse, the mediator is the other most important person in the process. People are sometimes confused about what the background of a mediator is. Are they a lawyer? Are they not? Do they have to be? Or, are they a therapist? The answer is it really varies and it varies within a given state and it varies between states.
In family law cases like divorce, mediators are often attorneys, but not always. For instance, in New York, there are no particular requirements or credentials that are required for you to call yourself a mediator. That said, it’s still most common that a divorce mediator would have a background as an attorney and, most frequently, a matrimonial attorney, so there’s somebody who really knows the landscape, knows the terrain that you’re walking as you go through the divorce process. But, keep in mind, that that is something that is not required that they be an attorney, so if that is something that’s important to you, that is something that you want to clarify with your mediator at the outset. What’s they background? Are they a lawyer? Are they not? And then, if they are a lawyer, do they have a background as a matrimonial attorney or do they have a background in a totally different area of law?
The other person or people who can play a role in a mediation process are attorneys. A lot of people are surprised to hear that because they were drawn to the mediation process, sometimes, to avoid working with attorneys, to not get bogged down in a very adversarial process. That being said, I personally think there is a very valuable role, a limited and very valuable role that attorneys can play in a mediation process, and that is, basically, in two related but somewhat distinct ways. So, I guess, the more expansive of the two ways is in a role of what I call a consulting attorney.
A consulting attorney is somebody, if you’re going through a divorce mediation process, somebody that you, individually, would hire outside the mediation process to consult with throughout the process. So, you might meet with them even before your first mediation session, but you don’t have to. They give you information about the law, they give you advice about how to frame particular issues that are important to you, how to respond to different things that your spouse brings up in mediation, how to package a particular settlement option that you’re proposing, how to assess a settlement option that your spouse is proposing, and so on.
Then, when you and your spouse have agreed on all the issues, a consulting attorney would help you by reviewing the term sheet or the memorandum of understanding that summarizes the terms you’ve agreed to and sort of analyzing it as a whole. Then, they would, certainly, be reviewing the final contract, which tends to be a much longer document and is a pretty heavy lift to review for somebody who doesn’t regularly read separation agreement or settlement agreements in divorce cases – so, it’s a very, very valuable role. And, for some people, they would not want to be in a mediation process if they didn’t have the opportunity to consult outside the process with an attorney who is their own advocate. For other people, they don’t want anything to do with an attorney as part of their mediation process.
Then, there’s a third group who doesn’t feel the need to consult with anybody during the process, but when they have their agreement drafted and they are staring down a 60-page contract, they definitely want an attorney to review it for them. I don’t refer to that role as a consulting attorney because they really haven’t provided consultation throughout the mediation process. I think of that person more in the role of a review attorney, basically, because they’re reviewing a contract for you, giving you feedback on it, maybe helping you get a few things tweaked or adjusted, but, more or less, they’re playing a very, very limited role.
To summarize, the different people/parties involved in a mediation would be you and your spouse, of course, the mediator, and then, potentially, outside attorneys in a role of a consulting attorney or a review attorney. Then, I should add, that there are absolutely mediation cases in which it’s appropriate to involve somebody like a child therapist or a parenting coach, a divorce coach for one or both of the spouses, maybe a financial expert in a neutral role who is helping you to assess how to tax optimize your settlement terms. So, that’s true in a mediation process, that’s definitely true in a collaborative law process which is designed to incorporate other professionals, and other professionals are also brought in in other divorce processes. We’ll talk about those in future episodes, but something to keep in mind. That being said, the main roles are the mediator and then, potentially, the outside attorneys.
DIVORCE MEDIATION: WHO TALKS TO WHOM
So, how does it work? Let’s say that you and your spouse decide you’re going to do a divorce mediation process – you choose a mediator. You both decide that you want someone in a limited role outside the process to be able to consult with, so you both hire your own consulting attorneys. So, who talks to whom? Well, the bulk, typically, of your negotiations will be in the room with the mediator with all three people talking to each other. You and your spouse are talking to each other, you’re, each, talking to the mediator, and vice-versa.
Certainly, for some couples, it also works well for them to talk directly to each other outside the mediation room, and for other couples, that does not work as well. So, you and your spouse will, absolutely, be talking to each other directly in a mediation process and there is some variation between couples as to whether you are talking to each other directly only in the mediation room or you’re able to do that in a productive way when the mediator is not present.
If you have attorneys who are assisting you in the process, you would, individually, speak to your attorney outside the mediation sessions and your spouse would do the same. Then, sometimes, when issues come up, you know, maybe there’s a stumbling block or a particularly complex issue, you may ask your attorney to speak directly with your spouse’s attorney, or you may ask the two attorneys to speak directly to the mediator to clarify something or to help you in working through a particularly thorny issue. It’s not that that’s uncommon, but for the purposes of understanding what a typical mediation process looks like, the bulk of discussion is really between you, and your spouse, and your mediator, together.
DIVORCE MEDIATION: WHERE THINGS TAKE PLACE
In terms of where things take place in a mediation process, they basically are happening in the mediator’s private office, so you’re not going to court to have your mediation sessions. If you have both chosen to hire consulting attorneys, generally speaking, you’re not having your meetings at the consulting attorneys’ office/s either, you’re having them in the, sort of, neutral setting of your mediator’s private office.
DIVORCE MEDIATION: WHAT HAPPENS WHEN YOU AGREE
When, through the mediation process, you and your spouse have talked through and agreed, in principle, on all the different subjects, topics you need to cover, you will transition from the in-person negotiation phase to the drafting of a contract phase. That usually starts with but does not have to start with the drafting of a summary of the terms that you’ve agreed to. Once that term sheet or memorandum of understanding is agreed to and everyone is on the same page, a contract is drafted based on it. Sometimes, you can skip straight to the contract drafting and that’s really more a matter of, sort of, a personal preference or practice style of your mediator or your attorney – there’s no right or wrong.
So, who does the drafting of the terms sheet and the ultimate contract? Well, and that’s assuming you have the mediator and you both have outside consulting attorneys, it can go a couple of ways. Most common for couples who have been through a mediation process is for them to have the mediator, at a minimum, draft the term sheet, the summary of what they’ve agreed to. Maybe it’s two, or three, or four, or a few more pages long, but it’s not extensive. It’s written in plain language. It’s something that is written in a language that you would write it in that’s intelligible and not in lawyer speak. The purpose is for it to be a short and not wordy, and that’s to save time, and also so that you and your spouse are comfortable reviewing it directly, so that you feel like there’s a document that you can read through and understand, and agree to or agree to most of but be able to flag, “Actually, you know, what it says about our credit card debt is not correct,” as opposed to the language of a contract which can be, sort of – the intention is not to obfuscate or to confuse the reader, but I think that that could be the unintended effect of a whole lot of legalese.
Anyway, very typical that the mediator would be the one to draft that document if you’re in mediation. It would be unusual to have one of your attorneys draft the term sheet or the summary of terms you’ve agreed to – nothing bad about it, just not usual practice. Then, if your mediator is an attorney, I would say, it’s also highly common for them to be the person who is drafting your legal contract based on the term sheet that you’ve agreed to or just drafting your legal contract from scratch, not based on a term sheet, but based on your agreements on the mediation process.
If your mediator, I should say, not an attorney, they cannot, they should not, they cannot, ethically, draft your separation agreement or your settlement agreement. You need to have an attorney draft that for you, and so that may be a reason to be working with outside attorneys. If you’re working with a mediator who’s not an attorney, say, they’re a therapist and they do couples therapy as part of their practice and divorce mediation as part of their practice, that person could take you through the entire mediation process and they could certainly draft the summary of what they understand you two have agreed to in the process, but they cannot draft the contract for you and you would have to look to your attorneys to do that.
I think part of the downside of having one attorney draft the contract for you is that it can feel a little bit skewed in that attorney’s or that particular client’s favor, but, generally speaking, that’s not a huge issue after you’ve gone through a mediation process. It can be though, so it’s my own opinion where you have the opportunity to have a neutral party draft for you, I think that’s preferable. In fact, I should mention that if you are working with a mediator who’s not an attorney or is an attorney, but for whatever reason doesn’t draft contracts for their mediation clients, you can also retain a neutral attorney to draft for you in the role of a neutral scribe, basically, who’s an attorney for both of you. That’s less common, but it’s possible, so I want to put that on your radar.
One other thing I want to say is that when the contract is drafted, this goes for the term sheet too, but usually is more extensive when it comes to your contract, when the contract is drafted there are usually revisions to it that are made. When you’re coming out of a mediation process, there are different ways that the revision process of your contract will go. It’s common to have your attorneys share their revisions with you and potentially with the mediator directly. They may share them directly with each other, that is, the attorneys between themselves. But, oftentimes, you and your spouse will go back to the mediator for a session or two in which you talk through the different revisions that have been proposed to your agreement, and you work through them with the guidance of your neutral mediator rather than in a negotiation between the two attorneys, which is more of a traditional format.
That being said, many mediation cases will, when it comes time to revise the first draft, or second, or third draft of the contract, the attorneys who are assisting you will negotiate directly with each other on their revisions. That’s a call that you and your spouse should make together in discussion with your mediator and with your attorneys because the process can be adjusted to respond to whatever your collective instincts tell you is the most effective and productive way to work.
DIVORCE MEDIATION: LEVEL OF ATTORNEY INVOLVEMENT
Another area in which each of the different divorce processes differ from each other is in the level of attorney involvement. We’ve talked about that somewhat so far, but, the gist is that, in a divorce mediation process, the level of attorney involvement – and when I say “attorney” I don’t mean if your divorce mediator is an attorney, but I mean if you hire, you and/or your spouse hire individual attorneys – the level of attorney involvement varies. So, there are mediations where neither spouse hires an attorney, and there’s no outside attorney involvement. The only attorney involved in the process is a neutral mediator. Then, there are cases in which only one person will retain an attorney to review the final contract or, at the other end of the spectrum, not in a bad way, but just in terms of the level of involvement of attorneys, there are many mediations in which both spouses have their own consulting attorney to work with from the very outset of the mediation process, so that would include and involve a higher level of attorney involvement in the case.
DIVORCE MEDIATION: LIKELIHOOD OF TIME IN COURT
Then, likelihood that you’ll spend time in court is another area of difference between the different divorce processes. In a mediation process, I would say that you probably have the lowest possible level of likelihood that you would spend any time in court. I say that because unlike a DIY divorce in which someone’s got to file your divorce papers and if you truly aren’t working with anybody else, it’s going to be you. Not meaning you necessarily have to appear in person in open court, but you, at least, will have to go and interface with the court’s matrimonial or divorce support office.
In a mediation, you are working with a divorce professional, and you can opt to have that person and/or one or both of your attorneys handle every aspect of interfacing with the court for you. Now, keep in mind that each state’s practice around how divorces are handled is slightly different, so I’m speaking from my own perspective as a divorce attorney and mediator in New York City. Regardless, I would say, of all the processes, mediation and possibly collaborative law, leave you with the very lowest likelihood of having to spend any time in court, which for many people is a positive thing.
DIVORCE MEDIATION: PROS + CONS
Let’s talk a little bit about different pros and cons of the mediation process and talk about what kind of case or cases are right for mediation or is mediation right for. So, in terms of pros, I think people are drawn to mediation for a number of reasons, among them is a wish to work, primarily, with a neutral. I think if you are drawn to mediation, it may well be because it offers you the opportunity to work with a neutral in a way that feels as little polarizing of you and your spouse as possible, and as supportive of maintaining the quality of your relationship as possible. I think that that’s important to a lot of couples whether or not they have kids and, certainly, having kids who, by their very existence, will require you to be in a relationship with your ex going forward and in to the future for the rest of your lives. That’s a big motivation, I think, for people to protect the integrity and the quality of the relationship with their spouse, and to do that by not letting the divorce process to get too polarized through working with advocates.
Somewhat related to the process not being polarized is the issue of expense. A lot of people are drawn to mediation because it tends to be a less expensive process. And, listen, everything is relative. There could be a case in litigation which is, by far, the most expensive process that is less expensive or as expensive as a particular case that is mediated. I mean, that would be extremely rare, but it’s not impossible if you had a really high conflict and conflict situation in mediation that took a very long time to resolve and, in contrast, had a super simple case that involved one court appearance, and then you settled, and it was done, but it doesn’t tend to work that way. Mediation tends to be a small fraction of the cost of a litigated case, not least of which is because you’re paying to do most of your litigation with one neutral professional as opposed to with two professional advocates, two attorneys. So, the total cost of the process is lowered by the fact that you could be paying only one professional or, in the cases in which some attorney involvement is included in the mediation process, it’s still a fraction of what it would be and what it would cost if your process were only being led by attorneys and not predominantly being led by one neutral professional.
I think the other good thing about, and this is especially in contrast to a DIY approach, the other good thing about having a mediator involved, at least one divorce professional involved, is to that you can have some reasonable assurance that you are not missing any major issue, and I would say, also, that if your mediator is a matrimonial attorney as well and is qualified to talk to you about divorce law, that you are aware of what the law says on particular topics whether or not you decide to follow it – that you have some awareness of it. I think, also, finally, a big pro, let’s say, of working with a neutral professional in mediation is that even if you know all the issues that you need to discuss and you know what the law says, and you don’t need a professional for that, sometimes just talking through the issues, even if you understand them, can be pretty challenging and it can be really helpful to have a third person in the room who’s neutral supporting both of you to be able to have your conversations as effectively and productively as possible.
So, really quickly, let’s just mention a couple of cons or downsides, potential downsides of a mediation process. In some ways the downsides are in the nature of a double-edged sword. Mediation is a voluntary process, which is great because the mediator can’t force you to do anything you want to do, your spouse can’t force you to do anything you don’t want to do, however, if your spouse is really intransigent, and being really unreasonable, and will not compromise on a particular point, you don’t really have any recourse in a mediation process, and this is through mediation, certainly with DIY divorce, through a mediation of collaborative law, a settlement negotiation. The only recourse you have, if you can’t come to an agreement with your spouse is by going through a litigation process, by going through the – of course it feels, kind of, negative and in, some ways, it is – the obligatory process of a litigated divorce. So, if you need it, it can be a con of mediation that it’s not there.
The other downside would be if your spouse was not being, not particularly intransigent on an issue, like digging their heels in, but just they weren’t really willing to participate or they’re not digging their heels, but they’re dragging their heels. So, they’re not showing up to meetings, or they’re postponing, or they’re not doing their homework, and you’re not really able to move forward, that can really be a drag. There’s not a lot that your mediator or your attorney in another process like collaborative law or a settlement negotiation can do. Basically, what you can do is identify how much delay you’re willing to tolerate and then just be clear about, you know, “Okay, beyond this point, I think, I just have no choice but to go to court.” I don’t say that lightly because any mention of court can really come off as a threat and that can be counterproductive to your negotiation process.
So, some of the downsides, I would say, of mediation is that it’s great that it’s voluntary if you’re both working productively towards a solution and being reasonable with each other, but if that’s not happening and the fact that it’s voluntary can be, kind of, a hindrance. I would say that people who are a good fit for mediation are people who, A, want to settle their case out of court and that’s probably most of you. Very few people want to have a drawn out litigation battle in court.
I think it’s also important that you have some level of – I don’t know if comfort is the right word, but I’m going to use it – some level of comfort in being in the same room with your spouse. I don’t mean to say that as you’re going through a divorce process you will necessarily enjoy being in the mediation room for your mediation sessions. I think mediation sessions are difficult for most people, but if you are fearful of your spouse or fearful of raising a particular topic with your spouse, I would highly recommend that you have a consultation with an attorney before you initiate a mediation process to assess whether or not mediation is the right for you because you really do need to have a base, like a minimum viable comfort level for mediation to work. That’s because for mediation to work, you both, both spouses, need to be willing to agree and they need to be willing and able to disagree. The mediation process can’t work if all you do is disagree with each other and neither of you is ever willing to compromise or really reach a viable agreement – the mediation process won’t work for you if that’s the case. Conversely, if you feel unable to speak up for yourself and disagree with something your spouse is saying or vice-versa, if they feel that toward you, mediation may not be a great process for you either.
The last thing that I would say is that it really important that you feel able to follow, with some level of comfort, the different topics that are being discussed in the room. So, if you have a very complex asset picture or, this often comes up around finances, it can come up around your kids though, too, but if there are components of your lives that need to be resolved in a divorce mediation that are very confusing to you, that you feel overwhelmed by, that you don’t feel able to process on your own, you, again, you might consult with an attorney before initiating a mediation process. Sometimes, all you need is to have the support of an outside attorney on that or those particular issues and you’re good to go. Then, sometimes, every issue is so complex that you feel like you’d spend the majority of your time in conversation with an attorney anyway, so why not just do a collaborative law process or a settlement negotiation.
So, that is it for our summary of a mediation process. I hope you found it useful. Unfortunately, we don’t have the time in this episode to talk through the collaborative law process, but we will do that when we meet again in Episode 5. In the meantime, thank you so much for listening, and I will look forward to speaking to you soon.