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