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Mediation is a relatively new event. It wasn’t that long ago that people would either resolve their cases without a mediator or let a judge decide their case. Fortunately, mediation is becoming more common every day as people realize just how valuable the process can be to their case.
With the rise in popularity of divorce mediation, there is also in increase in the number of people offering divorce mediation services. While only a limited number of people can become certified mediators, in North Carolina you are not required to have any specialized training or certification to advertise your services as a mediator. There is no requirement that mediators must also be lawyers and, in fact, many mediators in North Carolina are not. Many people who advertise as divorce mediators in North Carolina are neither lawyers nor certified mediators. Literally anyone who wants to can set up a website and call themselves a divorce mediator. Therefore, before you hire a mediator it is important to do your research.
Along with choosing the right divorce lawyer, choosing the mediator can be one of the most important decisions you make in the divorce process. The right mediator can help set the tone and work through a successful settlement. The wrong mediator can actually cause the parties to move further away from settlement and can create a situation that makes it impossible to settle the case.
With all the options out there, how do you choose the right mediator for your divorce case? While there is no one-size-fits all answer, I believe the following questions will be helpful in your search.
The first question you should ask is whether the mediator is also an attorney. You will need to decide whether you want a mediator involved who is also a lawyer, or whether you would prefer someone with a different background such as a therapist or counselor. Even if the mediator is a lawyer, he or she will not be able to give legal advice. However, the decision of whether to hire a lawyer-mediator or a non-lawyer mediator is critical as each will bring a different perspective to your case.
If you want to choose a mediator who is also a lawyer, then you should ask whether that lawyer should be a family law attorney. Not all lawyers who advertise as divorce mediators have family law experience. Many have likely never seen the inside of a family law courtroom or advised clients on divorce issues. Just like with the lawyer vs. non-lawyer issue, a mediator who is also a divorce lawyer will bring a very different perspective to your case from one who spends most of their time drafting wills or handling traffic tickets.
A third question you should ask is how the mediator’s fees are structured. Does the mediator charge an hourly rate or a flat fee? There are advantages and disadvantages to both. When the mediator charges based upon an hourly rate, you pay only for the time you use. Most mediators are ethical and will not draw out the process solely to increase their fees, so that should not be a major concern. But if the opposing party is taking longer with the mediator than you are, you may end up feeling as though you’re paying for a lot of time the mediator spends with the other party. If the mediator offers flat fee services then you know up front exactly what the mediation will cost. However, for some cases the flat fee may end up being more expensive than if the lawyer billed based upon the actual time spent on the case.
Finally, you should ask about the mediator’s experience with cases like yours. What are the major issues in your case? If your primary concern is custody of the children, does the mediator understand different custody arrangements and how to structure something that is best for the needs of the children? If your primary concern is division of property, does the mediator have experience dealing with complex issues such as valuation of businesses and different types of retirement accounts? It is important to pick a mediator who has substantial experience dealing with the types of issues that are present in your situation.
A Board Certified Specialist in Family Law, it is my opinion that all divorce mediations should be conducted by a mediator who is also an experienced divorce attorney. That’s because a divorce lawyer will understand the nuances of the situation and, to the extent possible, understands what a judge is likely to do. The experienced divorce lawyer can help run the Child Support Guidelines and should understand how your retirement account works.
With a little bit of research you should be able to find a mediator in your area who is also an experienced divorce lawyer. Chances are, your divorce lawyer will be familiar with the local mediators and can tell you who he or she would suggest. Since the outcome of the mediation may impact the rest of your life, it is important that you spend the time and effort to choose the mediator who is right for your situation.