More and more clients are asking us whether they should “mediate” their divorce. It is clear from the nature of the way the question is posed that they perceive mediation as both more fair and, lower in cost. This can be true. But before we select an option, it would be wise to examine what mediation means and how it compares to the rest of the menu.
Mediation is probably best known in the field of labor law. School districts do it all the time in their labor contracts with teachers and staff. Each side selects one or more informed representatives. They select a neutral mediator to “lead” the discussion of their differences in the hope of reconciling them. The mediator is not an advocate for either side. In fact, he or she must remain scrupulously neutral in order to retain the confidence of both sides to the negotiation. The mediator’s job, is essentially to keep the discussion focused and to record understandings that are reached by the parties for later review with their constituents.
One of the keys to successful mediation is what we termed informed representatives. If you are no thoroughly familiar with what you are negotiating you are often at a huge disadvantage. Using our school district paradigm, if one party is unfamiliar with data concerning teacher salaries and benefits the mediation is skewed from the start. This is true in divorce based mediations as well. If both parties don’t come to the table equally familiar with the assets they are dividing and how they work, it is very difficult for mediation to work. Under principles of mediation, the mediator is not supposed to “help” either party in the negotiation process.
If your case is simple, meaning that the assets are easily understood, mediation can be relatively easy. But even in the simple cases, clients often misapprehend what they are doing. They assume that each party must get half of the assets and often ask questions like: “How do I get my half of the house?” This is the type of question that needs to be addressed before mediation can be meaningful. Just as important are questions that aren’t demanding an answer. Should there be alimony in addition to a division of the assets? Has household debt been acceptably proportioned? They create some interesting ethical dilemmas for mediators as well? If a dependent spouse never thinks to raise the question of alimony, is that the mediator’s responsibility? As Julia Malloy-Good, an attorney specializing in mediation in West Chester, PA. observes, this is where lawyers can help the mediation process by insuring that the clients come to mediation with lists of issues that may require consideration.
In complex cases where there are tricky assets or assets laden with tax issues or complex debt arrangements (e.g. one spouse’s car was financed as part of a second mortgage), it is all the more important that both sides come equally prepared. We often find that parties will have spent considerable time and money with the mediator only to see the resulting document memorializing what they have agreed upon to find that the deal they have made can’t be done. Good mediators who are experienced with complex financial assets will try to steer the parties away from these problems but that can sometimes create “neutrality issues”. Let’s say that my spouse and I make a deal. She gets the house and I get the car and the pension. If the experienced mediator points out that the house is burdened by the debt for my car, don’t I have the right to snap at the mediator for pointing that out to the other side?
The second, and more nettlesome issue involves emotional intelligence. Again, we have spoken about “informed representatives”. But divorce and money are both highly charged emotional issues. Some folks can’t really negotiate clearly because they are emotionally unsuited to the process. Other couples come to the process with wildly disparate negotiation skills. Many people are employed in jobs where they negotiate for a living. Homemakers can be effective negotiators as well but they are often not the equal of the person who works as a buyer for a company, a salesperson or a contract administrator. Anyone can be taught to box but few of us are ready to spar with professionals. Mediation is based on the premise that each side will select informed negotiators who are well schooled in the facts and the dynamics of negotiation. The problem with divorce mediation is that “you” are the one doing it and you don’t get to appoint someone to act for you.
This may sound like a diatribe intended to discourage mediation. It is not intended as such. Where two well informed, motivated and emotionally balanced people mediate, they are often very happy with the process because “they” made their deal instead of the lawyers and because they may have saved some money along the way. They walk out with a memo of understanding written in language they understand and which their lawyers are directed to turn into a legally binding instrument.
If mediation is not your cup of tea or you try and fail, a second alternative is to arbitrate. Arbitration is a different animal. The “parties” don’t decide on their arrangement. Rather they each present their best case to a neutral person who “decides” once and for all how a matter will be concluded. The judicial system works in the same way, but there are some key differences. Almost any judicial ruling is subject to review by a higher authority. In most counties in Pennsylvania, a divorce case will go to a master or hearing officer. His or her report is appealable to a judge. The judge’s ruling is appealable as of right to the Superior Court of Pennsylvania. Unhappy there? You can ask the Supreme Court of Pennsylvania to look at the decision. In theory, you can even appeal from that and ask those nine guys in Washington DC to take a look at what ails you.
Arbitration does not allow for that. With very few exceptions, an arbitrator’s ruling is final and not appealable. That can be scary but ask anyone who has seen his or her spouse exercise all rights of appeal and that can be scary as well. But it does mean that you should select your arbitrator carefully because that person is going to control it all; for better or worse. If you arbitrate, you need an arbitration agreement that makes clear how the arbitrator’s ruling fits into the judicial process. Only a judge of a court can divorce you. Arbitrators can decide financial issues and can even hear and decide custody disputes but Pennsylvania law is clear that judicial courts can undo a decision affecting child support or custody where the court is convinced that the child’s interest was not protected.
Usually, arbitration is quick. File for something in court; you wait in line like at the airport. The people ahead of you in line are trying to get to a place too. Arbitration is like owning a fractional interest in your own jet. You and your spouse pick the time and the arbitrator makes time for you to get you where you want to go. The other advantage of arbitration is that usually the hearings move very quickly. In the judicial system, the court is making a stenographic recording of the process. The court reporter is taking down everything that is said. The exhibits must be marked so that a reviewing court can see precisely what happened. In arbitration there is no reviewing court so there usually is no record to keep. The focus is on having the matter concluded; usually with a 25 to 50 page written report in which the arbitrator recites what he or she heard and how they assess it. That report also will direct who gets what assets and liabilities and on what conditions. It is ordinarily agreed that the report becomes a court order by agreement of the parties.
Arbitration is not free. Use the judicial system and ordinarily you pay a few hundred dollars in court costs and the taxpayer picks up most of the rest. It is important to understand the arbitration process thoroughly before you start. Some arbitrators such as Philadelphia’s Michael Fingerman control the hearing very closely and conduct almost all of the questioning themselves. Others, such as West Chester’s Alita Rovito tend to favor allowing counsel to try their case much as they would in an ordinary judicial hearing, without the burden of making a record. Because arbitration is private one can negotiate the rules of the road. But, the arbitrator is going to charge the parties the same rate as a skilled lawyer to do the work. Sometimes the cost is equally split. Sometimes the parties allow the arbitrator to allocate his/her fee between the parties. Smart arbitrators demand to be paid before they issue their reports as most folks are unhappy with at least some part of an arbitrator’s ruling. But with arbitration you will usually be finished in a matter of a few months where the judicial system easily takes a year or more to chop through the same morass of paper and argument. That often makes arbitration worth the extra investment. It also saves the costs of transcripts that most litigants find prohibitively expensive.
So, that’s the menu. You make the choice.