Five Qualities to Look For in a Divorce Mediator

In a recent article entitled 5 Tips for Choosing the Best Divorce Mediator, Arizona divorce mediator Michael Aurit lists five qualities spouses contemplating mediation should look for. While much of what he writes is helpful advice, his emphasis is sometimes misplaced, and we must take exception to some of his assertions. If you’re contemplating a divorce and want to try mediation, you need all the information and insight you can gather. So, here is our take on the qualities to look for:

• Trust — Mr. Aurit is correct that trust is an important factor for a successful mediation. Your comfort level with the mediator is essential, and you should have confidence in the mediator’s honesty. But Mr. Aurit seems to place too much value on a mediator’s “level of empathy and compassion.” These qualities are great in a friend or neighbor, but too much empathy in a mediator can cause the process to bog down. Mediation is about moving forward on a reasoned basis to a conclusion that’s fair for both parties. Ask yourself if you want a mediator who will indulge your feelings about the past, or one who will look out for your future?
• Practice area that is only family mediation — Mr. Aurit believes a mediator should “ideally” spend 100 percent of his practice in divorce and family mediation. We agree that the focus should be on divorce and family law, but we also strongly believe there are advantages to having a practicing attorney as your mediator — someone who actually takes divorce cases to court. A practicing attorney knows how a court is likely to rule on a given issue and can use that knowledge as a guide for discussions. A practicing attorney knows the current state of the law, while someone who only mediates may not catch up for a couple of years. A practicing attorney also knows the legal implications of proposals made in mediation and can steer the parties clear of any unintended consequences before they sign an agreement.
• Education in dispute resolution and mediation — Here, Mr. Aurit places formal training as a mediator above legal knowledge and actual hands-on experience in family law and mediation. We believe there is no substitute for actual experience.
• Involved in the mediation profession — According to Mr. Aurit, this includes writing articles, blogging, belonging to professional organizations, and teaching mediation. These certainly are niceties of the profession, but as considerations for clients, they hardly deserve to rank in the top five. These activities all belong to the realm of legal theory and do nothing to advance a mediator’s experience, which we all know is the greatest teacher.
• Flat fees or hourly billing — Mr. Aurit favors flat fees over hourly billing, because a flat rate “can eliminate some of the unpredictability of fees for billing that occurs without you present.” He says it contributes to a sense of “financial stability” that “can provide stress relief.” He also warns about a conflict of interest among mediators who bill by the hour and stand to make more money if the mediation drags on. All this is true. But there is a counter argument about the conflict of interest for the mediator who bills on a flat rate: after the money runs out, wouldn’t he or she be just as likely to hustle the parties into a hasty settlement rather than spend additional time smoothing out the rough edges? In our practice, we’ve found that a solid, accurate estimate of expenses works well to give our clients confidence in the system while keeping costs down and providing flexibility when the case warrants a little extra attention.

As we said at the beginning of this discussion, anyone contemplating divorce mediation should get as much information as possible. You should hear various points of view and ways of doing business, so that you can then go with the process and the professionals who make sense to you.

If you are planning to file for divorce, Solutions Divorce Mediation, Inc. can help you and your spouse reach a cost-effective marital settlement agreement. Call us at 1.631.683.8172 or contact our Long Island office online.