When you're dealing with a family law issue, like divorce or a custody dispute, fighting in court isn't your only option. Mediation is a method of alternative dispute resolution (ADR) where couples meet with a neutral third party who helps them reach an agreement so they can move on with their lives.
The purpose of mediation is to help parties work together to reach a solution rather than hiring lawyers to fight for them. If you and your spouse or co-parent decide to avoid court by mediating, you can save a lot of time and money—and start a constructive dialogue that might help you have a better relationship in the future.
Finding and hiring the right mediator for your case is key to getting the most out of your mediation.
When Should You Hire a Mediator?
Mediation isn't just for divorce cases: You can use professional mediation services to resolve ongoing child custody, visitation, property division, or other family law disputes. In most cases, it's never too late to mediate—you can mediate your dispute at any time.
- Before heading to court. If you and your spouse or co-parent communicate well and want to save time and money, you can mediate your dispute before you ask the court to intervene. For example, in a divorce, spouses who settle all of their divorce-related issues in mediation will draft a marital settlement agreement, and can then file an uncontested divorce. Or, if you agree to most but not all the issues in mediation, you can sign a mediation agreement for the terms you settled and ask the court for guidance on the remaining issues.
- During court proceedings. Courts often order couples and co-parents to mediate their dispute before holding a hearing or trial. If a judge sends you to mediation, you'll have to participate. But even if you're not required to mediate, you can still decide to hire a mediator while a court action is pending. For example, if you filed for divorce thinking that you and your spouse could never work things out, but find that things cool off a bit as the court case proceeds, you could propose mediation to your spouse and try to work out at least a few issues.
- Post-court orders. If you already have a parenting agreement or child custody order in place, for example, and you and your co-parent find yourselves disagreeing on a significant issue, you can reach out to a mediator to try to work out your differences before having to involve a court.
If you think that mediation might work for your dispute, you'll have to get your spouse or co-parent on board. Fortunately, you'll have to agree on only two items: which mediator to hire and how to split the costs of mediation.
How to Find a Family Law Mediator
One of the easiest ways to find a mediator is to ask your family or friends for referrals. Unlike anonymous reviews posted online, gathering recommendations from your inner circle generally means you can trust the advice. Also consider asking for recommendations from:
- Your marriage counselor or therapist. Counselors and therapists can be excellent referral sources—they've seen which mediators get results.
- An online mediation service. Many people choose to mediate their disputes online. If you decide to mediate online, any reputable service will match you with a qualified mediator based on your answers to some straightforward questions.
- The local courthouse. The clerk at your local courthouse might maintain a list of local mediators who are willing to take on clients outside of the courtroom.
- Your state courts' administration office. The office that oversees all the courts in your state—often referred to as the "state judiciary"—might keep a list of approved mediators that you can access online or in its building.
- Your county bar association. The "bar" is a professional organization of lawyers. Your local bar association might have a list of qualified mediators. (The mediators referred by the bar association will probably be lawyers.)
- National and state mediation organizations and directories. Check the websites of one of the many organizations that vet and train mediators, such as the Academy of Professional Family Mediators, the National Association of Community Mediation, and the National Academy of Distinguished Neutrals.
What Should You Look for in a Mediator?
Mediators have many different backgrounds: They can be psychologists, attorneys, social workers, and MFTs (marriage and family therapists), or they can simply be trained in mediation. Although many states require mediators to obtain and maintain professional certification before advertising their services, not all do.
Do your research on potential mediators by looking for:
- Appropriate training. Conducting a mediation well is an art. You'll want to find someone with formal instruction in various mediation methods, as well as practical, on-the-job experience.
- Subject-matter knowledge. During training, mediators learn how to facilitate a conversation between individuals in specific areas of law. For example, some mediators specialize in child custody mediation. Others might specialize in civil disputes only. You'll want to find a mediator who regularly handles disputes like yours.
- A style you can work with. It's essential to make sure that your mediator's style matches yours. If a potential mediator has a reputation of using scare tactics rather than compassion and you know that you or your spouse or co-parent won't respond well to it, you should continue your search.
A good mediator will understand and prioritize the issues you need to resolve, provide possible solutions, and prepare the final agreement for the parties to present to court if needed.
Interviewing Potential Mediators
You can contact potential mediators in various ways, including telephone, e-mail, or through the mediator's website intake form. Many mediators provide a free initial consult to help determine if working together will be a good fit.
What Should You Ask a Potential Mediator?
Once you understand what you might be looking for, you're ready to start interviewing potential mediators. Even if you decide to work with an online mediation service, you can still ask these questions.
- What sort of training do you have?
- Are you required to be certified as a mediator in our state? If so, are you currently certified?
- What part of your background makes you a good fit for my case? Are you a family law specialist?
- What do you charge for mediation?
- Where will mediation take place?
- Do you negotiate with both people simultaneously, or do we remain in separate rooms while you travel to discuss the case with each of us?
- How many cases like mine have you handled?
- What is your record of resolving disputes without court intervention?
All of these questions are appropriate for either in-person or online mediators. If you're planning to do online mediation, consider asking the mediator about the general process and whether you'll need any specialized technology to participate (usually you won't).
How to Formally Hire Your Mediator
When a mediation is voluntary (not court-ordered), both parties to the dispute must agree to hire the mediator. Once you decide to work with a particular mediator, you might be asked to sign a mediation agreement. Every mediator's policies will differ, but most mediation agreements include the following:
- both parties' contact information
- the cost of mediation and each party's share of the final cost
- a confidentiality statement
- the terms of mediation, including the number of sessions and location
- the rules for the mediation
- whether the mediator will draft a settlement agreement if you're able to resolve your issues, and
- any additional terms the mediator deems necessary for a successful mediation.
Some mediators will require payment up-front, but others will wait to collect payment until after your mediation sessions are over.
Depending on the mediator's policies, you might provide information and documents electronically, via email or mediation software. In some circumstances, the mediator will schedule a follow-up phone call later to go over more specifics of your case. Most mediators will provide you with specific information about how to plan for and what to bring to mediation. Contact the mediator's office with any questions you have regarding payment, policies, or preparing for your mediation session.