Tuesday, October 27, 2015

9 things to consider when hiring a family law (divorce) mediator

There are many people that advertise on the internet as mediators.

No one "licenses" mediators. Therefore, anyone can call themselves a mediator.
So do your research before hiring a mediator.

Anyone that has completed the basic 40 hour mediation training can call themselves a "certified mediator" since they received a "certificate" when they completed this basic course.

I take approximately 25 hours each year in Texas family law and another 25 hours in mediation training.

So...would you hire a 16 year old that just received their driver's license to drive your car or would you want someone that has extensive training and years of experience to borrow your car?

This is what I look for when I personally need to hire a mediator:

1. Knowledge of the laws of the state that I live in.

Many mediators are former attorneys.

A person does not have to be an attorney to be a mediator.

However, it's important to pick someone that understands current laws in your state.  It's time consuming and difficult to keep current on state laws.  I suggest that you hire someone that has current up-to-date information on your area of conflict.

2. Someone that is familiar with the judge and how the judge usually rules.  The Texas Family Code is used throughout the State of Texas -- but each judge is different and has a lot of latitude in their interpretation of Texas laws. So what works in East Texas probably won't work in Harris County.  So know your judge!

Even though the mediator does not give legal advice or make decisions for you, they should be there to offer you "common sense" advice and "reality test" the issues that the parties are discussing.

I've seen many people offer to pick the kids up on Friday at 6 pm but they don't get off work until 7 pm - there is no way that is going to work and the parties need to discuss these decisions before entering into unworkable arrangements.

Some mediators just write down whatever the parties say and no one takes the time to actually think about how the family is going to function AFTER this matter is finalized.

3.  Someone what is not "afraid" of issues regarding potential domestic violence.

I see a lot of mediators that will not touch any case where there might be a sliver (or potential) of physical or verbal abuse.  Unfortunately, abuse and possible abuse is the reality of the practice of family law.

Hire someone that has taken advanced training in domestic violence and conflict resolution.

I mediate cases where there is a protective order in place -- but I take pre-cautions and have the parties arrive and leave at different times.  They are never allowed to interact with each other at the mediation.  I keep the parties separated.

Don't assume that a mediator will automatically do this - many mediators always have the parties in the same room and that might not be appropriate for your case.

4. Someone that does not want to "deal" with "feelings" of the parties.

Every relationship that ends has hurt feelings involved. Anger, fear, panic, retaliation occurs in family law cases - it's something that might need to be addressed.

How can a person make major life decisions unless their fears (or concerns) have been addressed?

Some mediators are "lazy" and only want the easy cases.  They don't like people getting vocal or difficult to deal with -- I don't use these type of mediators.

5. Price - a mediator can charge whatever they want to charge.  So shop around for pricing.  Prices can vary from free (Dispute Resolution Center) to over $2,5000 per side for an 8 hour mediation.

6. Location - Pick a location convenient for everyone. Harris County is huge and you could select a mediator over an hour away from you - so look before you book.

7. Availability - Mediators pick their own schedules.  Some will only do one mediation per day. Others only work at their mediation practice on a part-time basis.

Some mediators do 3 mediations per day - that limits you to a short 4 hour session.  If you don't finish then you will need to pay for and schedule a second session.

8. Flexibility - Each mediator is different.  Some are more flexible than others.  So look around before booking a mediator.

9. Involvement - some mediators just write down what you agreed to do.

If they are not an attorney, then they will not file the Mediated Settlement Agreement with the court.

The burden falls upon you to do so.  If it's not entered at the courthouse then the value is limited.  If the judge is unaware a Mediated Settlement Agreement has been signed then it's worthless.

Also, a Mediated Settlement Agreement needs to contain certain "magic" words.  I've seen some mediators that are new forget these essential words - if not done then it's revokable.

In summary, select your mediator carefully.

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