| Before entering into mediation or arbitration, you need | | | | the mediation to work because he will make a lot |
| to know the difference between them. In arbitration | | | | more money if we cannot settle." Again, the better |
| and mediation, a neutral third party is used. But this is | | | | lawyers would be pleased to see their clients avoid |
| where the similarities end. In arbitration, both husband | | | | the trauma of a contested divorce. These topnotch |
| and wife agree to give the arbitrator the power to | | | | lawyers want what is best for their clients. |
| decide the dispute as a judge would. In binding | | | | Mediators come from different professions: mental |
| arbitration, you agree beforehand to abide by the | | | | health, financial planning, law, or social work. Most |
| decision as if it were law. In straight arbitration, if you | | | | important, however, the person must have training in |
| don't like it, you can go elsewhere. | | | | mediation, and be knowledgeable about issues |
| The purpose of mediation is for both husband and | | | | confronted in a divorce. |
| wife to come to a mutually acceptable settlement. The | | | | You'll also want to focus on the mediator's style, and |
| mediator does no individual counseling, and is limited to | | | | decide which will work best for your situation. Some |
| gathering data, setting the ground rules, and keeping | | | | will simply be a third party to facilitate communications |
| both parties on track. Throughout mediation, alternative | | | | as you and your spouse sort through issues. Others |
| solutions are offered, issues are clarified, and a | | | | will provide advice about particular issues such as child |
| settlement is arrived at. If you and your spouse are | | | | custody or property division. And still others will assist |
| communicating, then mediation should be explored. | | | | the parties in working through some of the emotional |
| Mediation as a Choice Mediation doesn't eliminate your | | | | issues of divorce. |
| need for a competent lawyer. It does require voluntary | | | | In shopping for a mediator, ask the following questions: |
| participation of both husband and wife. | | | | |
| Mediators can be retired or active family law | | | | 1. Do you specialize in family law? |
| commissioners or judges, a lawyer who is skilled in | | | | 2. How many mediation cases have you handled in the |
| family law, or a lawyer who is skilled in family law and | | | | past 12 months? |
| has some counseling background. Mediators can also | | | | 3. How long have you been a mediator? |
| be psychologists or other professionals who have | | | | 4. What kind of training do you have? |
| been trained in mediation. | | | | 5. Do you have any certifications? |
| Gary Friedman is a lawyer and director of the Center | | | | 6. What is your professional background? |
| for Mediation in Law, located in Mill Valley, California. His | | | | 7. How much do you charge and how do you bill? |
| book, A Guide to Divorce Mediation (Workman | | | | 8. Do you see the parties individually or only as a |
| Publishing, 1993) is one of the best on the market | | | | couple? |
| today. Since the early 1980s, he has trained thousands | | | | 9. What is your schedule like for the next two weeks? |
| of lawyers in the skills of mediation. When we first | | | | 10. What guidelines or checklists do you use to make |
| spoke with him, we asked if one of the objectives of | | | | sure you address all issues? |
| mediation was to attempt to get couples through the | | | | 11. Are you aware of how courts in this country |
| divorce process with the least amount of pain. His | | | | resolve certain issues such as child custody and |
| response was, "In many ways, mediation is more | | | | spousal support, and does that influence you? |
| painful than divorce because you face each other | | | | A goal of the mediation process is to draft the outline |
| directly. You experience conflict in a very intense way, | | | | of a settlement. The parties will then have a lawyer |
| so that in terms of what you go through, many times | | | | take the outline and prepare a formal separation |
| mediation is harder. Mediation is a face-to-face | | | | agreement based on the terms of the mediation. If you |
| situation -- both parties often hear things they don't | | | | are using only your spouse's lawyer in your case, seek |
| want to hear." | | | | a second opinion from your own lawyer. Have this |
| He stated that plenty of lawyers support the mediation | | | | lawyer explain the pros and cons and significance of |
| process but added that many only pay lip service to it. | | | | each provision. Remember, you will have to live with |
| "Most lawyers are quite attached to law as the | | | | this the rest of your life. |
| standard to be used in determining how people should | | | | Arbitration Arbitration is another tool for avoiding |
| decide their disputes and don't believe that such a thing | | | | lengthy and expensive litigation. An arbitrator acts as |
| as fairness exists," he said. "When mediation is brought | | | | your own private judge who conducts a "mini-trial" of |
| up, many lawyers are very cynical about it." | | | | sorts, in which the parties and their lawyers present |
| Why? Money is one good reason. Mediation costs a | | | | their cases. Arbitration is used more in some areas |
| fraction of what it would for standard lawyers to work | | | | than in others, and can be particularly attractive if you |
| out the settlement. It is charged on an hourly basis and | | | | live in an area with a huge backlog of cases. If you |
| it usually takes from four to ten sessions for couples | | | | agree in advance to what is called binding arbitration, |
| to get through the whole process. Friedman said that | | | | the arbitrator's decisions are final and become a court |
| the best lawyers and the most competent divorce | | | | order just as if you had gone before a judge. On the |
| lawyers have no problems when their clients | | | | other hand, you can agree that the decision of the |
| participate in mediation. In fact, they actually encourage | | | | arbitrator is only "advisory," in which case you would |
| them to do it, know how to support them as they go | | | | not be required to follow his or her decision. |
| through the process, and encourage them to come | | | | An arbitrator can be used for the entire process or |
| back and consult. "This way, the husband and wife | | | | only to resolve certain issues. The arbitrator may even |
| have the protection of their lawyers and, at the same | | | | offer a combination approach, mediating initially, but |
| time, the ability to control the decisions that are made in | | | | making a decision for you if you cannot agree. |
| meetings face-to-face with spouse," he said. | | | | Shop for an arbitrator in the same way as you would |
| This is not to say that lawyers have no place in | | | | for a mediator, but you will find that it is rare that an |
| mediation; the contrary is true. A good lawyer will help | | | | arbitrator is not a lawyer. Retired judges frequently |
| you guard against one of the dangers of mediation - | | | | open arbitration practices. If this is something you want |
| that this more informal approach could miss or | | | | to consider, ask your lawyer to recommend some |
| inappropriately value properties that are divided in the | | | | good arbitrators. |
| marital settlement. Before you sign any agreements | | | | In some jurisdictions the court, upon request, will |
| that come out of mediation, have them reviewed to | | | | approve a lawyer to act as what is called a "special |
| determine whether they represent your best interests. | | | | master" to get past a problem area. This appointed |
| The bottom line is that no single person has all the | | | | lawyer usually will have a particular area of expertise, |
| answers and any answers he or she offers will often | | | | such as the division of pensions. Again, your lawyer |
| be muddy. Some type of compromise may well be | | | | should play a significant role in deciding whether to use |
| the only solution. In reviewing our files of men and | | | | a special master and who that person should be. |
| women who achieved successful divorces - from | | | | We are not thrilled when we hear that divorcing |
| which they came away with their self-esteem intact | | | | couples are gearing up for a courtroom encounter. It's |
| and a reasonable property settlement - we noticed | | | | rare for both sides to come out of the courtroom |
| two key similarities: They had a nonadversarial lawyer | | | | content with the aftermath of a divorce. If you feel |
| representing each side and they kept channels of | | | | that you may be caught up in someone else's agenda |
| communication open. | | | | - yes, lawyers sometimes do not act in your best |
| How to Make Mediation Work Obviously the selection | | | | interest - consider strongly getting a second opinion |
| of the mediator is critical if this process is to be given a | | | | and input from one of the experts identified here. |
| chance to work. An experienced divorce lawyer | | | | Points to ponder: |
| (another time when experience counts) in a | | | | Be sure you understand whether the arbitrator's |
| metropolitan area will know a variety of mediators with | | | | decision will be binding or only advisory. |
| varying backgrounds and strengths. Get | | | | There is no lawyer-client privilege with a mediator, |
| recommendations from your lawyer before you turn | | | | arbitrator, or special master, so anything you say could |
| to other sources. | | | | come out in court. |
| You may be thinking, "I bet my lawyer does not want | | | | |