Reviewing the Mediation Process – Part I

how to choose a mediator

If you have decided to try divorce mediation, you may still have questions about how the mediation process works. Experienced divorce mediators generally stick to the same basic framework, but within that framework, there are individual differences. Those who have been following our recent posts know that some mediators follow a more structured mediation process than others. If you have not already chosen a mediator that both you and your spouse feel comfortable with, take a few minutes to go back and review some of our tips about choosing consulting mediators and consulting attorneys. If you are ready to review the basics of the divorce mediation process, read on.

Setting Ground Rules

Setting ground rules is the first step in most mediations. Ground rules tend to be fairly standard, regardless of a mediator’s style. These rules may be included in a written agreement that the mediator asks both parties to sign before starting negotiations. The agreement will also include other important information, such as fees, scheduling, and length of sessions. Even if you have already agreed to rules in writing, however, most mediators will spend some time going over them in person. When everyone follows the rules, the mediation has the greatest possibility of success.

Here is a list of common ground rules:

All participants must maintain a respectful tone

It is not uncommon for tensions to run high during divorce mediation. After all, each party’s financial future, as well as possibly the fate of their children, is on the line. Striving for a civil tone, however, is critical. Any kind of emotional attack or verbal abuse will quickly degrade the quality of the mediation.

Only one person can speak at a time

One of the most basic requirements of a successful mediation is that people listen to each other instead of talking over each other. The requirement that only one person speaks at a time also applies to the mediator, as well as to any attorneys or experts that may appear at a mediation session. For some people, this can take a little getting used to. Taking careful notes while someone else is speaking is a good way to organize your thoughts while waiting for your turn.

Parties must not interrupt one another. 

This sounds like the same rule as above, but it is a bit different because it applies specifically to the parties. The mediator retains the right to interrupt the parties because the mediator’s job is to keep the mediation process on track and make sure that each party gets equal time.

All parties must maintain confidentiality. 

The mediator will explain the legal requirements regarding confidentiality of information exchanged during mediation. Make sure to ask questions if there is anything you feel unclear about.

Breaks will be freely available.

Divorce mediators understand that due to the nature of the proceedings, participants may need more than just the usual food and bathroom breaks. Occasional emotional cool-down breaks may be necessary as well.

The mediator will be available for separate caucuses with each party.

Caucus” is the term used for an individual meeting between the mediator and one of the parties. Mediators differ regarding how frequently they tend to use caucuses. Often their use will occur organically as a mediation progresses, but a participant should always feel free to ask for a caucus. If you share private information in a caucus, the mediator will treat it confidentially if possible. Mediators also take great care to ensure that whenever one party requests a separate caucus, the other party is offered equal time.

The parties will not file any papers in court without first informing both the other party and the mediator.

In some cases, it may make sense to take one or more issues out of mediation and request an opinion from a judge while continuing to negotiate the remaining issues. This should be a mutual decision, however, and one both parties make only after they have exerted their best efforts to resolve the issue in mediation.

For more on ground rules, see: Setting Ground rules in Divorce Mediation. Once they have addressed the ground rules, most mediators move on to opening statements.

Making Opening Statements

Divorce mediators differ in the emphasis they place on opening statements. Some do not ask for them at all. Others try to use them to set a collaborative and upbeat tone. For example, a mediator may ask you to say something positive about your marriage.

If you do have a chance to make an opening statement, use it to tell a compelling story of the divorce from your own perspective, and in a light that favors your settlement goals. You can cover a lot of ground in the 10 minutes or so you may have. Remember that the most important person to address is not the mediator but your soon-to-be former spouse. Up until this point, your spouse has no doubt been primarily focused on their own pain and loss. This is a chance for you to acknowledge your spouse’s perspective while also bringing the focus squarely onto your own losses and your own needs going forward. What did you sacrifice for your marriage? What does this mean for your future?

Use your opening statement to start the process off on the right foot. Present your points assertively, but not aggressively. While your main goal is to make a strong case for yourself, don’t be afraid to acknowledge your spouse’s contributions.  Mediation is not the forum for those who believe that one person must win, and the other person must lose. Let your spouse know that you are invested in finding solutions that will benefit both of you.  Even if your history has been contentious, this is the time to start a more conciliatory approach.

Do you have questions about ground rules or opening statements in mediation? Contact a family law mediator at Weinberger Mediation Center for a free consultation.