Right now, more than ever, mediation can assist with family restructuring. The courts are backed up and families are under tremendous stress under one roof. The good news is that the entire process of a divorce or separation can now be done online (Zoom); and a mediator can help. A mediator can also be the best way to avoid the stress, damage and cost of a court battle.
How do you choose a mediator? Is it safe to google “mediator” and pick one? When it comes to getting divorced, you don’t want to cut corners making decisions about your children’s custody, child support, your retirement accounts or who gets the marital home. Do it right. Find a qualified, competent and compassionate mediator. A little research into finding the right person will go a long way.
1. Lawyer or Nonlawyer?
Mediators have training and professional backgrounds that range from retired schoolteachers to child psychologists to lawyers. If you are mediating mainly issues about child custody and setting up a parenting schedule, a mediator who is also a psychologist or a social worker can be a great fit. However, if you are doing a full divorce with significant financial issues such as child support or property division (for example, when real estate is involved) a mediator with a legal background is a good idea.
2. Go Local
Though Zoom will allow you to use a mediator from virtually anywhere in the world in the comfort of your own living room, family law is specific to each state. It can also be a big help to hire a mediator who is familiar with your local judges and what kinds of agreements they like and typically will accept. (Probate and Family Court judges can reject an agreement if they consider it unfair.) Also, it can be helpful to have a mediator familiar with local issues such as schooling during COVID. So, if you live in, for example, Hampshire County, while you could hire a mediator from Suffolk County, you should ask them if they have experience with cases in your area.
3. Is Mediation Confidential? Only If the Mediator is Trained!
Court is public. However, Massachusetts law says that mediation is confidential but ONLY if you are using a properly trained mediator who has four years of experience. (You can also use a trained mediator who is accountable to certain dispute resolution organizations or has been appointed by a judge see MGL c. 233 s. 23C). Be sure to ask your mediator if they are covered by the confidentiality statute!
TIP: A little known fact is that mediators are not regulated like lawyers are in Massachusetts. Unfortunately, that means almost anyone can say they are a “mediator.” Attending professional development training, belonging to a professional organization like Massachusetts Council on Mediation (MCFM), or giving back by mentoring other mediators is a good sign that the mediator isn’t just doing a little mediation “on the side.” You want someone who is dedicated to improving and honing their skills.
4. Who Decides? Mediator or You? The Mediator’s Style
Mediators have different ways and styles of mediating. Most mediators are facilitative and believe their role is to be a guide; it’s up to you and your spouse, not the mediator, to make a decision. Empowering you and your spouse to make a fair decision that is informed by your needs is a basic tenant of a facilitative divorce mediator. Other kinds of mediators, often those who have a professional history as a litigator or retired judge, are more directive and concerned with rights and the law. (Sometimes this is called evaluative mediation.) While they shouldn’t tell you what to do, this kind of mediator may lead you in a certain direction and have more influence on the outcome of your divorce.
5. Private, Court Appointed or a Non-Profit
The benefit of hiring a non-profit agency to mediate your dispute is that they often have reduced rates. Thus, a non-profit can be a great way to make mediation even more affordable. The downside of using a non-profit is that you usually cannot pick your own mediator. The non-profit will assign someone to you. And your mediator may or may not be a lawyer. In Franklin, Hampshire and Hampden Counties the Collaborative Resolutions Group (CRG) is an excellent non-profit offering reduced rates for mediation, and many of their mediators are lawyers.
Often, court appointed mediation is done through a non-profit organization. There may even be ways get some mediation for free. Usually for court appointed mediation you must have already filed in court.
When you hire a private mediator, you are choosing the person who you have researched as the best fit for you. The mediator is working directly with you so scheduling and administrative aspects of the process are streamlined and easier.
Ask if your mediator is insured and for how much. They should be but there is no requirement that a mediator carries insurance.
7. How to Find a Mediator? Online? Referral Service?
A combination of the following is a good strategy:
Online search: Look on referral websites that support mediators (not websites mediators advertise on). Massachusetts Council on Family Mediation (MCFM.org) and Mediate.com each offer trainings and support for mediators and allow you to search their database of mediators.
Mediator websites: Look at the mediator’s bio page. Is family mediation one of their main practice areas? Do they have reviews from former clients on their site?
Ask around: if you have a lawyer, see if they can recommend a couple of good mediators. Therapists such as a couple’s counselor are a great resource. If you have a friend who has used a mediator, ask them about their experience.
8. Talk to your Spouse
You and your spouse will have to agree on a mediator. So, it’s important to provide information on the mediator you’re considering to your spouse. Get your soon-to-be-ex involved in the search and if possible, provide them with the names of at least two mediators you approve of so that they don’t feel like you’ve chosen the mediator and they have been part of the selection process.
Private mediators usually charge by the hour. Some take payment up front, which is called a retainer. Others are “pay as you go.” If you’re splitting the cost with your spouse, mediation is considerably cheaper than each of you hiring a lawyer. Non-profit organizations offer a sliding scale.
10. Do You Feel Comfortable with the Mediator?
So, what do you do if you phone up a mediator, chat with them and come away thinking, “I don’t really like that person much?” Don’t hire them! It’s important to trust your mediator. Many mediators offer a free or discounted 30-minute mediation consult where they explain how mediation works. This is your chance to assess the mediator and figure out if there’s a good fit. And don’t worry, mediators offer this to also make sure you are right for mediation. So, if you’re on the fence about hiring someone, try a free consult. You have no obligation to hire that mediator at the end of the consult.
It doesn’t take a lot of research or hard work to find a skilled, experienced mediator who can affordably and efficiently help you and your spouse work out the serious issues divorce presents. However, you want to make sure you find a mediator is trained and qualified, is well respected by other professionals and by former clients and works in style that gets you a result that you can live with.
Suggested Mediator Phone Call Script
1. Do you have mediation training? Yes No
2. Do you belong to any mediation professional development organizations? Yes No
3. What is your mediation style? Facilitative (mediator facilitates you and your spouse making a decision) or directive (mediator leads you to an outcome)?
4. Are you insured? Yes No
-> If yes, how much insurance per claim?
5. What is your hourly rate?
6. Do you offer a free mediation consult? Yes No