Fri 22 Oct 2021

How to Choose a Divorce Mediator

Posted by Amy.Robertson

Article originally posted by Amy Robertson on her blog and reposted here with permission.
 

Mediator fit is really important. Ideally each spouse will have a chance to speak with the mediator before starting the process or scheduling meetings to make sure both spouses are comfortable proceeding. This also gives you the opportunity to get a sense of fit.

But what should you consider when making the decision to hire a mediator? Many people just go with their gut or intuition. Here are six factors to help you balance your intuition with what you are learning about the mediator you are considering hiring.

1. Self-determination
Do you feel slightly unsettled if you are told what to do (even if it is a good idea)? If you do, this is an indicator that self-determination, or having some input into the process is important to you.

Some mediators will present you with a streamlined packaged process. Ask questions, find out if there is room for your ideas and some flexibility. As a former process improvement and strategic change consultant I love efficiencies, just not at the cost of making assumptions about what people want or need.

I make a point of finding out up front the needs and expectations of each person I work with so I can effectively work with both spouses to ultimately create a separation agreement that is a reflection of what is important to them, feels fair and is enduring.

2. Collaborative from the start
There are a number of decisions that need to be made in mediation. If the process is more directive and streamlined it is likely that decisions around how financial disclosure will happen, what kind of agreement you need and how lawyers will be involved have already been decided. This isn’t to say a streamlined or directive process is a bad process, just that the process has not started off with you and your former spouse collaborating and making decisions together.

Most of my clients say they benefit from determining the approach to resolving an issue together. By collaborating with your spouse on how the decisions will be made you are establishing a foundation for more decision making success. When spouses are also parents they often have years of decision making together ahead of them and mediation can be a great place to practice how future decisions will be made.

3. The Separation Agreement
Having spent a considerable amount of time working on an Access to Justice (A2J) initiative in BC, I know that decreasing costs and supporting people to resolve their disputes are two key elements of A2J. Does the mediator assume they will draft your separation agreement (which comes with a price tag) or do they discuss your options with you so that you and your spouse can make the decision that is right for your family?

There are a few different ways you can have a legally binding Separation Agreement and they do not all require a lawyer(s) or additional costs. This is an important conversation to have with families based on their unique circumstances and what is most important to them. Some families I work with feel strongly that they want to consult with a lawyer and others feel strongly that they do not. My role is to provide them with information and to talk about the possible impact of each option. Ultimately, A2J for a lot of families means a timely process, saving money and the ability to choose what is right for them.

Some families want to use the agreement and terms that I have neutrally drafted in mediation as the template for a separation agreement that they create with the help of online tools and sample agreements from BC’s Legal Services Society. And yes, they use this legally binding Separation Agreement to file for divorce, get approval for a new mortgage or to have their financial planner equalize RRSPs.

I always encourage my clients to seek independent legal advice before signing anything and provide family law lawyer referrals for my clients. For more information on how to get a legally binding agreement see my blog, “Do you have to be a lawyer to draft a Separation Agreement?”

4. Mediator Qualifications & Experience
First you want to make sure that your mediator is qualified to mediate all aspects of a separation or divorce (e.g., parenting arrangements and financials). Next you want to make sure they have done more than the minimum amount of mediation training. A Certified Comprehensive Family Mediator from Family Mediation Canada requires the highest standards for Divorce Mediators in Canada.

In terms of experience, I think it is more important to ask a mediator how many mediations they do in a given week or month rather than how long they have been doing it (although both are good questions). Some mediators may have been mediating over 20 years but only do a handful a year or less. Another important question is if they do other types of work as well? You will gain some insight by understanding the mediator’s range of practice and deciding whether you want to work with someone who specializes in mediation or has mediation as only one area of their practice.

5. Cost & Transparency
It is important to know your mediator’s hourly rate as most packages or flat fees are simply an hourly rate multiplied by specific tasks that have a time limit (i.e., if you go over a certain allotment the hourly rate will kick in).  Packaged fees can be helpful and definitely give you an idea, just understand there are many assumptions built into this number. After you have shared some information with a mediator they should be able to give you an idea or range on cost but likely not a firm answer.

I tailor my process and go to the level of detail that the participants agree would be helpful. Sometimes this means we spend a little more time on some issues and a little less on others. As a general rule, the more conflict over an issue, more detail is recommended. Be cautious of firm quotes or timelines as they can be misleading.

6. Transformation of the Relationship
When some people separate there can be significant fallout. Anger and resentment can build, which can seriously affect a co-parenting relationship and the mental health and well-being of the child(ren). If this is your situation or you are worried that it could be, you will want to work with a mediator who has experience working with families when the goal is to repair relationships or improve the ability for parents to make decisions together for their children.

This is when my ability as a mediator to really understand you is paramount and why I do not have online in take forms – so that I can see how you respond to these questions and have a dialogue with you, not just capture data. This helps me learn more about you so that I can better help you and your family.

In Summary
After weighing all these factors you should ultimately trust the mediator you choose. The good news is that mediators are a trustworthy group. There are different ways to move families through mediation, so if you are stuck try working with a mediator that can provide some flexibility with their process. Flexibility is also an indicator of a mediator who can look at issues from many perspectives and might help you and your spouse understand something differently. It can also be beneficial to work with a mediator that is organized and has project management experience, as your physical and financial separation is a project.

Amy Robertson is a Mediate BC Family Roster mediator based in Victoria, BC.