Forrest (Woody) Mosten

Mediator and Collaborative Attorney

Certified Family Law Specialist

Finding Common Ground

This article was first published in the Divorce Magazine and are reprinted here with their full permission.

By Diana Shepherd

Mediation can help you and your spouse work together to solve the problems of separation.

Even if you and your spouse are still on reasonably friendly terms, you’ll probably encounter difficulties as you try to work out the details of your separation. When emotions are running high, it's almost impossible to make rational choices. Let's face it: neither of you is in the best frame of mind to make objective decisions that will affect the rest of your life.

Mediation is a voluntary settlement process giving you the opportunity to control the decisions that will affect your future. In mediation, you deal with the issues and problems of separation and divorce outside of a courtroom setting. As a result, mediation is often less costly—both financially and emotionally—than litigation.

According to Forrest Mosten, a Los Angeles mediator, family law specialist and the author of A Complete Guide to Mediation (American Bar Association), mediation is a new alternative to divorce litigation. “As people become disenchanted with our court systems, and as we become aware of the significant impact that a family breakup has on children, more people are turning to mediation.” Mediation isn’t marriage counseling—that's for couples who want to get back together again. You may discuss your feelings about the marriage and the decision to divorce during the process, but the goal of mediation is to reach agreements that will help you, your ex, and your children (if any) adjust to the divorce—and resolve future issues together.

How does mediation work?

During this cooperative, problem-solving process, an impartial professional helps divorcing couples to clearly define the issues in dispute and to reach agreements that are in the family's best interests. The mediator will generally meet with both of you at the same time, so if you and your spouse can’t stand to be in the same room together, then mediation is probably not for you. You don’t have to be best friends with your spouse in order for mediation to work, but you must be willing to search for fair and equitable solutions to the issues that you're confronting.

“Mediation can be a self-fufilling prophecy, because if both parties choose mediation, both are hoping to meet a compromise. The result is their mediation process becomes easier, and both leave happier with the outcome,” says Gregory Cooper, a Toronto lawyer and member of Resolutions Inc., a group of lawyers dedicated to resolving family law disputes through mediation and/or arbitration.

A mediator helps you identify the points on which you already agree, then works with you and your spouse to create practical, informed solutions to the others. During mediation, you’ll deal with issues both large and small. Here are some examples of typical questions that come up during the process:

  • How will we divide the things we own?
  • Who will the children live with?
  • What happens to our debts?
  • We both want to live in the house. How do we decide who will stay and who will go?
  • If the kids live with my spouse, how can I keep in touch with them?
  • How can I live on a reduced income? Every divorce is unique—just as each marriage is unique—so you're bound to have different questions to ask.

Each mediator will do things a little differently, but each is there to help you and your family find solutions to your problems. This doesn’t mean that the mediator will try to talk you into something. He or she may suggest options to resolve the issues, but the final agreement is always up to you. A good mediator guides the communication process, allowing each of you to have your say. He or she will help to clear up misunderstandings, and show you how to communicate more clearly with each other—which should reduce any negative feelings you may have for each other.

Your mediator doesn’t replace your lawyer—although some lawyers are also mediators. The mediator should have a good knowledge of family law, but your own lawyer is still needed to tell you what your rights and duties are, and to advise you on any written agreement you come to. A good mediator will encourage you to consult an attorney about specific questions of law, and to seek a legal review your agreement before you sign it. Your lawyer is there to look after your interests in the divorce; a mediator doesn’t represent either party.

The next steps

The mediator will help you examine your situation in terms of your needs and interests. Again, your own situation is unique, but here are some of the steps you’ll take during the mediation process:

  1. Identifying your issues Obviously, you have to know what the questions are before you can find the answers to them. Issues you’ll examine could include division of property and debts, alimony, child custody and support, and visitation rights of the non-custodial parent.
  2. Identifying your options. Once you know what your problems are, you can start working on solutions.
  3. Learning to work together.After you and your spouse have identified the issues and examined your options, you will work together to find a solution that's right for both of you. This doesn’t mean one of you wins and the other loses: the “right” choice will probably be a compromise that both of you can live with.
  4. Getting it in writing. You and your spouse can work with your mediator to draft a document—called a “Memorandum of Understanding” or a “Separation Agreement”—listing the details of your agreement. This can either be an informal working agreement, or it can be filed with the court as a legal contract.
  5. Keeping your lawyer informed. Before you sign any agreement, your lawyer should check it. Your lawyer will ensure your agreement follows federal and state laws, that your rights are protected, and that you understand and agree to what is written down. If he or she sees a problem, you can go back to mediation, or the lawyer can add to or rewrite that part of your agreement.
  6. Making it legal. If your agreement is incorporated into a court order or divorce decree, it's a legally-binding contract. That's why it's so important to have legal advice before you sign the agreement.

Does it always work?

No, it doesn’t. Successful mediation requires two individuals who are able to put their emotions aside and find solutions that allow each of them to achieve a positive result. Here are examples of situations in which mediation may be impossible:

  • If there's been family violence and one spouse is afraid.
  • If there has been child abuse.
  • If there's a significant power or financial imbalance in the marriage. “If there are any power imbalances, it can be difficult for a mediator to make sure one party doesn’t feel intimidated or controlled by the other,” says Paul Slan, another member of Resolutions Inc. “In the cases of past violence or abuse, a mediator can’t make one feel safe after a session is over.”
  • If one spouse won’t agree to mediation, won’t continue mediation, or won’t “play fair.” Remember, it takes both of you, and you both have to want it to work.
    Advantages of mediation

“There are so many advantages to mediation, it's sometimes hard to remember them all,” says Francine St. Clare, a mediation specialist with the New York firm St. Clare & Schmuckler. “Mediation doesn’t inflame an already bad situation, which makes it easier on everyone—especially the children. In litigation, children are usually the last thing discussed, but in mediation they're the first.”

Mediation also becomes a learning process for many couples, according to St. Clare. “Mediation teaches couples to talk to each other until the child is grown, and maybe even beyond that. Talking to each other is an ongoing process after the divorce, and mediation prepares them for that.

There are several other possible advantages to mediation, including:

  • In mediation, all of the issues and problems of your unique marriage are brought out in the open, discussed and, where possible, solved. “In litigation, the issues that don’t pertain to law aren’t addressed. An issue such as having another person spend the night while the child is in the house is something one parent may want to discuss. But unless one can prove this is harming the child, the courts won’t even touch on it,” says St. Clare.
  • You create your own agreement, rather than being told what to do by the court. In court, you're on opposite sides. In mediation, you're on the same side—your family's side.
  • Mediation can save you time and money. The issues you can solve together don’t have to be negotiated by two lawyers or decided by a judge in court. “Mediation is much less expensive,” says St. Clare. “Instead of paying for two separate lawyers to give you a full service divorce, you're only paying for one mediator between the two of you. The services you may require a lawyer for are minimal because they are only acting as advisors.”
  • Mediation is confidential, which allows you to avoid public disclosure of personal problems.
  • Your agreement can be temporary, to meet the needs of your family for the short-term, or to “try out” a new arrangement.
  • Mediation can teach you valuable conflict-resolution techniques. These new communication strategies can help you resolve any issues that arise in the future; if you have children, ongoing, healthy communication is essential.

Finding a mediator

Many courts provide mediation services to help families resolve custody and visitation disputes. In some locations, when families disagree about plans for their children, mediation may be required by law. Mediators also work in private practice. Your lawyer may be able to recommend a mediator, as can friends, family, or co-workers who have used mediation. The best way to find a mediator is by word of mouth or through professional organizations.

In most of the US and Canada, mediators don’t have to be certified before they can work with the public on a fee basis. But most mediators are affiliated with professional organizations that require specific training and experience. Referral information can also be obtained from these professional organizations (see “Referral Information,” below left).

Before you settle on a mediator, be prepared to ask questions such as:

  1. Do you belong to any professional organizations for mediators—such as the Association of Family and Conciliation Courts (AFCC), the Association for Conflict Resolution (AFM), Family Mediation Canada (FMC) or the local state or provincial organization? Finding a mediator through a professional organization suggests that accredited members' qualifications are likely to be better than those of unaffiliated mediators.
  2. What kind of training have you had in mediation? A skilled mediator should have a good working knowledge of family law, psychology, and negotiation techniques. According to Kathryn Somers, a lawyer and mediator in the Chicago firm DiGiacomo and Somers, most mediators have different backgrounds and specialities—such as a legal training or education and experience in psychology or therapeutic areas.
  3. How long have you been a mediator? The answer to this question depends on whether a mediator mediates full- or part-time. Some mediators may choose to take on 100 to 200 cases per year, and some may choose to take on five or ten. “As in any service, the more experience and training one has, the more likely they can get the job done,” says Somers.
  4. What kinds of mediation do you handle? Some handle custody and access, some handle financial issues; some handle both. The mediator will also suggest additional professional advice if appropriate in your situation.
  5. How much will it cost? Don’t be afraid to ask this question. You’ll probably be quoted an hourly rate for the mediator's time, and told when payment is expected. You have a right to know this information before you start.
  6. How long will it take? The mediator should be able to give you a rough idea, based on the kinds of issues to be mediated. It is flexible though, and depends on your needs.

Article appears courtesy of Divorce Magazine.

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© Forrest S. Mosten

Certified Family Law Specialist
Board of Legal Specialization, State Bar of California