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  • Writer's pictureAlan Jacobs

What Should You Ask Your Mediator at the Initial Session?

At my initial free consultations, I usually start by giving potential clients an overview of the mediation process, a little bit of background about me, and my philosophy about mediation. At some point I will turn to the clients and ask if they have any questions. I am often surprised that prospective clients have no questions. It could be that I have done such a comprehensive and fantastic job explaining the process that they truly feel they have all the information they need but I don’t really think that is it. Maybe they have already done all the research they need. Sometimes I think that the process is so overwhelming that clients may simply be distracted and not know what to ask. For most people it is their first time divorcing and they do not know where to start. Finally, sometimes clients have been referred by people, they are not shopping around and have come in to the initial session knowing that they plan to hire me. Sometimes, in those situation, clients save their questions for after we officially get started.

What I offer below is some thoughts and ideas of questions that may be helpful to ask at your initial consultation with your mediator. A free initial consultation is an opportunity to get to know your potential mediator and make sure that you are making the right decision. This person is going to help guide you in making some of the most important decisions of you life. Due diligence is not just important, it is critical.

1. First, hopefully you will have determined before the first session if the initial consultation is free. In short, some mediators charge for the initial session and some don’t. I do not charge for an initial session. I see it as an opportunity for the clients to make sure they feel comfortable with me as the mediator and for me to make sure that the case is appropriate for mediation.

2. There are a number of questions which are important to ask but which will inevitably fall into the “it depends” category. a.) How long will it take? This question has two parts. First is, how long will the mediation itself take and second is how long will the divorce action take? b.) Related to the first question is how much will it cost? How long the process lasts and how much it costs are the two most common questions. Obviously, every family's situation is different and impacts these questions - are there children involved, what assets and liabilities does the family hold, what is the level of cooperation or animosity between the parties.

3. Do you meet at regular intervals, (say for instance every two weeks) or is the scheduling based on the individual needs and schedules of the clients? Mediators have different approaches to this issue. Some will meet at prescribed intervals and some will leave it to the clients to determine the pace. I have found it best to let the clients work at their best pace and will never impose my own schedule.

4. Does the mediator take a retainer or do clients pay as they go? This is a very important question that may have an impact on whether you choose a particular mediator. I find that many clients that I deal with are struggling financially. Many clients come into mediation already in debt and now having two households is another additional burden. I have clients for whom the pace of the mediation (i.e.- how often we meet) depends on whether they have the money to pay for the session. One of the advantages of mediation over litigation is that it is almost always cheaper. If clients have to come up with a $2,500.00 or $5,000.00 retainer at the beginning of the mediation, they simply may not have the ability to come up with that much up front. I, for instance, ask clients to pay at the end of every session. I find that having clients pay as they go makes it affordable for clients and keeps them in control of the cost.

5. Will the mediator draft the Separation Agreement and court papers? I will draft all court papers and have and attorney I work with draft the final Separation Agreement.

6. Will the mediator go to court with the parties? I do not go to court with my clients but see it as my job to make sure that when they go to court, they are prepared and everything goes smoothly. That includes having a final meeting where I walk through the process they can expect in court and walk through all the court papers, agreement and financial statements. I believe most mediators do not go to court with their clients but it is a question that is worth asking.

7. Will the mediator tell the parties what is a fair agreement? Another way to ask this question is “What is the role of the mediator?” This is a critical question that goes to the heart of the approach that the mediator will take. There are some mediators who see themselves as more directive and some mediators consider themselves facilitative. A directive mediator will give you his or her opinion on what is fair or what a court might do. A mediator who is a facilitative mediator will help the parties reach an agreement, discuss the issues, explore options but will not tell the parties what he or she thinks the parties should do. I spend a fair amount of time discussing this with clients. I am a facilitative mediator. I will not tell clients what I think is fair because ultimately my goal is for them to reach an agreement based on what they think is fair- not what I think is fair. My conception of fair is based on my world views and biases. My goal is to make sure they have all the information they need to make an informed decision.

8. The corollary to the above question is will the mediator tell the parties if he thinks the agreement is not fair? This is a complex question. In addition to my goal of making sure they have all the information they need to make an informed decision, I want to make sure that when they go to court, things will go smoothly and the judge will approve their agreement. If I think they are agreeing to something which may lead to a problem with the judge approving the agreement, I will discuss it with the clients. How did they arrive at the decision? Do they understand it? Do they believe it is fair? I don’t see it as my job to change their minds but I do see it as my job to make sure they are not under some misunderstanding of the law or facts and I want to make sure that their rationale is sound.

9. Other than court papers, will the parties need anything else that would require drafting or lawyers and how much will that cost? The answer to this depends on the individual situation. There may need to be deeds drafted, Qualified Domestic Relations Orders drafted and there will be a cost for these.

10. Are there any downsides to using mediation? There are always pros and cons to every decision you make. Talk to your mediator about what he or she thinks are the pros and cons of the mediation process.

11. Should I have my own lawyer? I always encourage clients to speak to their own lawyer. This is important to talk to the mediator about. Talk with your mediator about the role/or non-role of lawyers in the process.

The questions which you should be asking yourself are:

1. Do I feel comfortable with this mediator?

2. Do I feel like this mediator has integrity?

3. Do I feel like this mediator will be fair and balanced and maintain integrity in the process?

4. Based on what I have heard, do I have any concerns about the mediation process in general?

Ultimately, both parties to the divorce action need to be comfortable with the mediator. Sometimes one is comfortable and the other is not. You should feel comfortable that the mediator is skilled, knowledgeable, competent, experienced and has the temperament that works for you. While it may be tempting to base the decision on whether you feel like you can influence the mediator to take your side or like you more or believe in you more, the real test should be, do you feel this mediator is knowledgeable, experienced, skilled, able to maintain neutrality, professionalism and does he or she provide a safe space to discuss sometimes difficult issues?

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

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