Divorce Mediation FAQ

Mediation isn't the solution for every divorce. But for many, it's a good way to sort things out as quickly and inexpensively as possible, with a minimum of conflict. Here are the answers to some frequently asked questions about mediation and divorce:

Q: What's the difference between divorce mediation and arbitration?

A: A mediator has no power to impose a decision on the husband and wife. He or she is there solely to help them find a resolution they both find acceptable. If they cannot agree, that's as far as the mediator can go.

An arbitrator, on the other hand, has the power to impose a settlement. The arbitrator listens to the arguments in favor of the husband and the arguments in favor of the wife, then renders a ruling. Typically, the husband and wife agree in writing to submit to arbitration before the process begins. They agree in advance to be bound by the arbitrator's decision, whatever it is, which means they must abide by the decision and cannot appeal it in court.

Q: How do I find a mediator?

A: Finding a good mediator is an inexact science. Most mediators' listings in the Yellow Pages will be either under Divorce Counseling or Mediation. If you ask a lawyer to recommend a mediator, he or she will typically recommend another lawyer. Experienced divorce lawyers will tend to recommend other experienced divorce lawyers. That's just the way humans are. If you have friends who are marriage counselors, you may want to ask them for a recommendation.

Another good place to look is the Academy of Family Mediators. A mediator who is a Practitioner Member of AFM has completed:

• At least 60 hours of family mediation training, including either a 30-hour or a 40-hour family mediation training course
• Two hours of domestic violence awareness training
• Twenty hours of continuing training every two years
• At least 100 hours of face-to-face family mediation in at least 10 different cases

This doesn't guarantee that a mediator is competent and caring. And there are plenty of competent and caring mediators who are not practitioner members of AFM, but it's a good place to start.

Q: How much does mediation cost?

A: Depending on what style your mediator uses, it can get quite expensive. This is particularly true if you're talking about caucus style mediation, in which the husband and wife first do a lot of investigation ("discovery") and then a mediator shuttles between the two spouses and their lawyers.

For the majority of divorcing couples contemplating less complicated forms of mediation, the cost is a function of three things:

• Any introductory, setup, or memorandum charge. It's not unusual for divorce mediators to charge $200 to $300 to prepare a memorandum of understanding - the document that spells out all your agreements and that will be used as the basis of the documents you file in court.
• The amount of time you spend in mediation. The time will vary, of course, depending on how complex your affairs are and how easily the two of you reach agreement. It will also vary depending on how well both of you have prepared for mediation beforehand. My shortest mediations have taken 45 minutes, but that's rare. My longest mediation took 15 hours, but that's even more rare.
• Your mediator's hourly rate

As you think through the cost of mediation, remember that your mediator won't be able to file your divorce documents. If you're not able to file your own divorce documents, you'll end up paying at least one lawyer to convert the results of mediation to the filing documents for an uncontested divorce.

Q: What am I committing to when I agree to mediation?

A: The commitments the two of you make when you start mediation are specific and narrowly defined. Specifically, with most mediators you don't commit to any number of sessions, you don't pay in advance, and you don't even commit to negotiate. Your only commitment is to accept the confidentiality of mediation.

Lee Borden is a lawyer and divorce mediator based in Birmingham, Ala., who loves his work. His Web site, divorceinfo.com, includes other articles.