United States: The Right Mediator – Choose, But Choose Wisely

Last Updated: September 9 2014
Article by Robert A. Epstein

Almost every client that walks through my door wants to know how quickly his or her divorce will last and how much it is going to cost.  The best answer that I can generally give is, "it depends."  It depends on you and your spouse, it depends on the other lawyer, it depends on the facts and legal issues, it depends on the judge, it depends on the county.  So many factors come into play that there really is no definitive answer.  In connection with that inquiry, clients want to know about mediation, usually because he or she has heard that it is a cheaper and quicker way to bring a divorce to a conclusion - when can it happen? how much does it cost? will we have to litigate if we mediate? does mediating mean that my case will end quickly?  Again, there are no definitive answers to these questions because they largely depend on the same points I highlight above.

Mediation is an incredible tool by which to resolve a case, which is why New Jersey courts not only encourage it as a form of alternative dispute resolution, but actually mandate it as part of the divorce process, as well as include it in the Court Rules.  So, even if you happen to be a litigant who is against mediating, you pretty much have little to no choice – the court system will require you to mediate whether you like it or not, because it is almost always better for the parties to privately settle the matter than the court, almost always quicker, more affordable, and the like, not to mention that it removes your case from a very busy court calendar.  Notably, mediation also allows you to settle your case in ways that a trial judge could not ultimately rule following a trial – especially as to alimony and equitable distribution.

To that end, if the mediation process is going to have any chance of success, picking the right mediator is a critical piece of the puzzle.  Selecting a divorce lawyer who knows the mediators, knows their reputations, knows how they conduct themselves, knows how much they cost, and the like, can only benefit facilitating a resolution in your matter.  Do you want a divorce lawyer to mediate your case?  How about a former family court judge?  Does your case need a mediator with a strong, definitive hand, or is a softer touch more appropriate?  Each case is very different, and each requires a different considerations for mediation.  For instance, if your spouse is the type of person who is going to head into mediation with a "litigation mindset", where there is no compromising, and mediation is really just a passing phase of a longer litigation, then having a tougher mediator may be the right way to go.  On the other hand, if everyone is largely agreeable and can act appropriately with one another, then a softer touch might be the answer.

I recently experienced the power of choosing the right mediator, in what had been a very acrimonious matter that I became involved with more than a year after its commencement.  The parties had already attended mediation before my retention, and it was a complete disaster.  Ultimately it had nothing to do with the quality of the mediator, but rather whether the mediator was the right fit for a given case.  This particular mediator, as part of his style, required that everyone mediate in the same room, which, for this particular case, was never going to work.  The parties did not speak to each other at all, the acrimony was high, and the chemistry was combustible.  The mediator also had a more free form manner, not having "crunched" the numbers, relying more on what the lawyers had to say for their client's respective positions in formulating a course to proceed.  In many cases, being in the same room and applying this sort of settlement mechanism is perfect.  Here, it was the opposite.

Subsequently, we went to a new mediator and it was evident from the start that she was perfect for this particular matter.  A firm touch with an analytical approach, while allowing the parties to mediate in separate rooms, it was no surprise that we reached the material terms of an agreement in merely two half-day sessions.  My adversary and I both recognized how effective the mediator was under the circumstances, and how she helped facilitate a conclusion to what was a matter seemingly headed for trial.

THE TAKEAWAY

Almost all parties want to mediate their divorce matter to bring it to an amicable and affordable conclusion.  Selecting the right divorce lawyer, and the right mediator, however, are vital components to achieving that goal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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