Five Things You Should Know About Divorce Mediation During COVID-19

With access to Courts limited during COVID-19, mediation is one of the few avenues families can pursue to resolve their divorce matters in a timely and orderly fashion.

While the Courts are recently reopened, they are not currently available to serve families (absent an emergency) in a timely manner. Upon re-opening, the Court shared that, “The global pandemic has seriously disrupted the court system’s ability to process cases, and those awaiting trials will not be able to utilize that process for many months.”

Mediation is a form of alternative dispute resolution with a trained professional (often an attorney or mental health professional) serving as a facilitator between the two sides. The mediator is a neutral third-party who works with the parties to try to reach a settlement of their issues. The mediator does not represent the participants or provide any legal advice. Sometimes people attend mediation with attorneys representing each of them. Sometimes they do not.

Before you commit to mediation with your spouse or former spouse, consider our Top 5 tips for maximizing your chances of success at mediation:

1. Understand the Roles of the Players at Mediation

A mediator is not your attorney, therapist, colleague, or friend. It is not their role to educate you on the law and the options available to you. They act as a facilitator and sounding board. Their role is to acknowledge but then take the emotion out of the divorce process to help navigate the parties through settlement discussions. You need to educate yourself regarding separation and divorce and be prepared to advocate for yourself if you intend to mediate without an attorney.

2. Consult with an Attorney Prior to Mediation

There are two important reasons for consulting with an attorney prior to mediation: (1) you need to know and understand the rules (i.e. the law), the players (i.e. your spouse’s counsel and, of course, the mediator), and the information relevant to each issue, to before mediation; and (2) attorneys can provide objective legal advice, tailored to your circumstances, that will aid you in developing your strategy and setting reasonable expectations as far as outcomes.

Given the high stakes consulting with an attorney is important to guarantee you understand the law and all of your options, to identify documents and information that must be gathered; and to develop a game plan for how interrelated issues can be resolved favorably. Doing so will improve your chances of walking away from mediation satisfied.

3. Selecting a Mediator

Not surprisingly, all mediators are not the same. Again, this is another area where advance consultation with an attorney can prove critical. Mediators have differing approaches and skills sets. Some specialize in particular issues and not others. Some people react to particular mediators and approaches differently than others. Identifying a mediator with a skill set and specialty suited to your needs and family, who can communicate effectively with both of you, will greatly improve your prospects of success at mediation.

Furthermore, many critical family law issues (i.e. distribution of property, alimony, child custody) are decided by fact-specific, intensive analyses of 10 or more factors, some of which do not lend well to objectivity. This means perspectives can vary wildly as to what is just. Understanding that, as well as how your potential mediator(s) may view particular issues or facts, can inform heavily on your choice of mediator.

This is another area where advanced consultation with an attorney can prove critical.

4. Should I Bring My Attorney with Me to Mediation?

A mediation is, generally speaking, a series of proposals exchanged between parties via the mediator. The mediator is the neutral 3rd party sharing the proposals and working to focus the parties toward resolving each issue. Mediation can be fluid and, at times, unpredictable. Navigating it alone will require composure, significant advanced planning and preparation, and quick thinking. It can be quite stressful for people, even with counsel present.

Your attorney can play a key role in shaping your experience at mediation. They will prepare you for what to expect, learn about your needs and wishes, and tailor your strategy to your goals. Perhaps most importantly, during mediation, they will guide you through separating emotion from sense, evaluating proposals from the other side, crafting counter-proposals tailored to your needs, and shaping persuasive messages conveying your ideas and proposals to the other side. Having your counsel present allows you to be prepared to respond to all options presented with knowledge, advice, and confidence. In addition, your attorney is available to discuss how the process is going and to assess whether or not the mediation should continue.

5. If I Decide to Go to Mediation without Counsel, What Must I Know?

First, you don’t have to commit to an agreement the day of mediation for the process to be successful. These are huge decisions you’re making. If you’re feeling uneasy or unsure about committing to proposed terms, pause and think. Take time to consider about your options.

Contact your attorney following mediation, or between sessions, to double check your thinking and progress. It can be very helpful in identifying any points that may have been overlooked or missed. It can cost far more than the cost of a consultation for attorneys to close loopholes left open in poorly worded or poorly contemplated agreements.

You need to know when you have an agreement and when you do not. Generally speaking, you don’t have an agreement until you’ve created some record of that agreement, either in writing or by oral recording. If you don’t have that, there is no deal. Your interest will be best represented by having your attorney review any agreement prior to you signing. It is the norm for mediators to recommend you have your counsel review any agreement prior to your executing.

Erik Arena is a divorce attorney who handles cases involving domestic relations and family law, including custody and visitation. For more information, contact Erik at [email protected].