THE BLOG

Select the Mediator Carefully

08/20/2014 02:35pm ET | Updated October 16, 2014
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Why are people more willing to spend time purchasing a car than they are in selecting an attorney and/or mediator to assist them in resolving matters pertaining to their family? "JD Powers said it takes the average person around 36 hours to purchase a car. That includes the research, test drives and the time and aggravation spent at the dealership." I realize that new cars are not inexpensive. In fact, as of July 2014, the average cost of a new car in the United States was $30,636. However, after all is said and done, it is still just a car. The worst thing that happens when you buy a new car that you don't like is you sell it and take a financial hit.

The average "financial cost" of a divorce in the United States, on the other hand, is estimated to be $20,000.00 per person. While some divorces only cost a few hundred dollars, others can cost millions of dollars. "Each case has its own 'price point.' The amount of fees and other expenses that may be required to resolve a case depends on at least four variables: (1) Level of conflict, (2) Complexity of issues, (3) Sophistication of clients, and (4) Choice of counsel." This quote is from an article by Nancy Chausow Shafer titled Dispute Resolution Processes in Limited Finance Cases - Stepping up to Client-Centered Decision Making that was published in the Fall 2013 edition of ABA Section of Family Law - Family Advocate.

The reason I specifically mentioned the "financial cost" is that it fails to take into consideration the emotional costs to the parties involved, their children and the family as a whole. You must always remember that money comes and goes, but family is forever. As I like to always remind my clients, like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end the relationship determines whether your family will be functional or dysfunctional from that day forward.

Since the cost of a divorce in all regards far exceeds that of car, don't you think the decision regarding the type of process to utilize and the professionals to retain should be made in a more thoughtful manner? Do you really believe that the selection of a car deserves more of your time than something that will impact you, your child(ren) and your family as a whole forever?

Ultimately, people purchase a product or hire a service provider based upon what they perceive as "relevant, unique added values which match their needs most closely." It is important to keep in mind that whereas a car is a product with accompanying services, lawyers and mediators provide "a pure service where one buys expertise..., and is therefore highly intangible.

The brand is even more important for services than the goods. [A] service brand is based entirely on 'the way the company does things' and on the company's values and culture. The brand positioning and benefits should then be communicated to the target market segments and real evidence has to be delivered of the brand's ability to satisfy customer needs. The brand strength depends on the extent to which these perceptions are consistent, positive and shared by consumers."

If you haven't given sufficient thought to your needs, how do you expect to find service providers who offer "relevant, unique added values" which match them most closely? The interesting thing about needs, interests, values and goals is that they vary from person to person. Does a person's need have anything to do with whether or not they are entitled to receive it in a court of law? One of the gravest mistakes people make is equating law with concepts of justice and fairness. "Fair" is subjective and therefore it is very fitting that it also happens to be a four letter word that starts with "F."

If you haven't even defined your own interests, needs, values, and goals, how do you expect your service provider to satisfy them? Your service providers assist you in getting from point A to point B. How can they effectively do that if they don't even know where your point "B" is located? Ponder this issue very carefully because it explains why so many people are unhappy with the results of their divorce case, when it was merely a brokering of deals.

When hiring a service provider, you are buying their "expertise." Do you seriously believe that all service providers of any given type have the exact same "expertise"? As I have said before, "the selection of an attorney is the most significant factor in determining how a case will proceed. In addition to competency, the attorney's personality and overall philosophy with regard to family law are of great importance." Clearly, family law attorneys are not interchangeable. The same goes for mediators and all other service providers.

"Much of the dissatisfaction people have with the litigation process has to do with the fact that it ignores the feelings and emotions that are fueling the locomotive, which is pulling the litigation train." If you need your feelings and emotions to be acknowledged and addressed, don't you think that it makes sense to work with a mediator who is well-reputed in handling such things?

If you need to be heard, doesn't it make sense to work with someone who respects that need? If you and your spouse have children together and you are interested in improving the lines of communication in order to better co-parent, do you hire a mediator who believes that "the mediator's job is to resolve disputes" and nothing more? If you are interested in trying to transform your relationship from miserable spouses to successful co-parents, does it make sense to work with a mediator who believes that the mediator's job is limited to resolving disputes? These are only a few examples of "relevant, unique added values" that mediators with the right "expertise" can provide.

As with many of my articles on mediation, the motivation behind this article was Franklin Garfield's article titled Should Divorcing Couples Who Mediate Be Talking Through Counsel? Mr. Garfield's sixth practice pointer to "family lawyers who participate in the mediation process directly" is to "select the mediator carefully."

I could not agree more and I also agree with him that "the mediator can become part of the problem." However, I disagree with him as to how they may become "part of the problem." Mr. Garfield believes that "the mediator's job is to resolve disputes" and nothing more. However, in my opinion, the mediator's job is to resolve conflicts. Better agreements are reached when conflicts are resolved first. Litigation exacerbates conflicts, while resolving disputes. Mediation resolves conflicts in order to resolve disputes. I am afraid that Mr. Garfield has it backwards.

In any event, Mr. Garfield warns attorneys to beware of a mediator with "an agenda of his or her own, such as allowing the parties to be heard, improving the parties' communications, or even transforming their relationship." I agree with him that the mediator should not have his or her own agenda, but what if the parties need such "expertise"? We are talking about families here. Might it be important for the parties to be heard, their communication improved, and the family dynamic be restructured?

According to Mr. Garfield, "Turning the mediation process over to the parties - on the theory that it is 'their mediation' -- misses the point: If the parties wanted to do it themselves, they wouldn't have hired lawyers; if their lawyers were able to settle the case on their own, they wouldn't need a mediator."

I am afraid that Mr. Garfield misses the point. Most parties allow their emotions to get the best of them and don't realize that they are in the best position to settle the case on their own, even with the assistance of professionals. Divorce is a legal process and clients can benefit significantly from the involvement of mediation-friendly consulting attorneys. Such consulting attorneys eliminate power imbalances, ensure that important details are not overlooked, and make sure that the 'what-ifs' are addressed in any agreement.

It seems to me that Mr. Garfield is making plenty of assumptions. However, as Stacey Neil, LMFT said in her article titled And Yet Another Reason We Shouldn't Assume, "Making assumptions is risky, full of ego, and typically inaccurate by its very nature, and yet most of us do it all of the time."

In order to select a mediator who is able to satisfy your needs, you must do so based upon "real evidence" and this is where client testimonials are of utmost importance. If the relevant perceptions about a given service provider "are consistent, positive and shared by consumers," that is a pretty darn good assessment that they possess the type of "expertise" you desire. As I keep saying, "outcomes are often determined by the way in which the 'game' is designed. After all, "[A] service brand is based entirely on 'the way the company does things' and on the company's values and culture."