Kane Law & Divorce Mediation Services - Seattle/Bellevue/Issaquah/Redmond

In my last blog, I discussed the difference between evaluative and facilitative mediators. How evaluative mediators are called in as the trial date approaches to settle the divorce by evaluating the legal strengths and weaknesses of each spouse’s “position.”

Facilitative mediators, on the other hand, leave the content of the mediation up to the parties and instead focus on the process of guiding the clients through all the issues important to obtaining a divorce in the State of Washington. Divorcing couples retain facilitative mediators in the early stages of a divorce, often before the Petition for Dissolution is filed. The focus of the in early stage divorce negotiations is interest-based, not rights-based. The decision-makers are the spouses. their agreements facilitated by a skilled mediator who provides a safe process and container in which the couple can make good and lasting decisions.

Facilitative divorce mediators are a diverse lot in background and experience. Although many mediators are lawyers by profession, other backgrounds are also represented in this field. For example, there are mental health professionals who may be best able to deal with significant communication problems between husband and wife or “high conflict” personalities. I also know of skilled mediators with a background in conflict management and organizational development consulting.

Acknowledging possible bias, I still believe that a legal background is invaluable for issue spotting and problem solving in early stage divorce mediation. Lawyers are trained to keep the negotiations on track, analyze facts, draw reasoned conclusions, and draft concise, comprehensive, unambiguous memoranda. If other disciplines are needed to manage emotions and good communications, these professionals can be included as collateral experts. While mediators who happen do be lawyers, don’t give legal advice, lawyers (particularly former litigators) seem to be thrive in this very different role. It is very satisfying to help divorcing couples achieve win-win outcomes without doing battle in court.

Experience also matters. Couples married for a few years without children or significant assets present less complicated issues and the need for a less experienced mediator. For mid to long-term marriages, parenting issues, significant property and/or spousal maintenance issues, however, a mediator’s experience in mediating parenting plans and property settlements is important to a comprehensive and efficient process. Stock options, pension valuations, closely-held family businesses, tracing separate property, family relocations—these are but a few of the issues that can and often do come up in mediations I facilitate.

These are complex issues calling for mediator with the right kind of experience. How can divorcing couples maximize their chances of finding a mediator who will tee up and facilitate discussion of these issues in a way that maximizes the opportunity for success? A good source of information is professional standing. The Association for Conflict Resolution ((formerly the Academy of Family Law Mediators) recognizes family law mediation experience by designating certain members as Advanced Family Law Practitioners for Conflict Resolution.

It’s not easy qualifying for this status. I know because I was recently approved after submitting an application the size of a telephone book. The prerequisites include a minimum of 60 hours of formal training, at least 250 hours of face-to-face mediations, and peer review of mediation documents.

Although a mediator’s background and experience do not guarantee success in the absence of spouses’ good will, focus on key interests, and spirit of compromise, together they form a winning combination for peaceful resolution of divorce issues.

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