The 5 qualifications they need to have (but usually don’t)
There are 2000+ mediators in Florida who are certified to mediate family disputes including the dissolution of marriage.
At a minimum, every family mediator should:
- possess a bachelor’s degree
- have attended a course on conflict resolution
- have completed 40 hours of a certified family mediation training program
- have observed 7 mediations conducted by other people
That’s it. These requirements can be met within 2 weeks, so it’s easy to see why quality among mediators varies widely. How do you choose? How would you know what to look for? You might ask around for a friend’s opinion and then hope for the best, but you can do a lot better than that. To sum it up in one sentence: the best mediator will be a mediation specialist who possesses a broad skill set that draws from law, psychology, and negotiations.
The 5 qualifications are:
- A law degree from a top law school
- Specializes in mediation and does not litigate cases
- Is not a retired judge
- Has a background in Psychology
- Can speak from personal experience
1) A law degree from a top law school
I know a handful of very skilled family mediators who possess a Ph.D. in Conflict Resolution. They are excellent listeners, pragmatic problem-solvers, and their patience is nothing short of awe-inspiring. They are also totally unqualified to write your settlement agreements and have no ability to discuss with you the legal aspects of your case.
Remember that the culmination of a successful mediation is the drafting of a legal document — your settlement agreement. Non-lawyers drafting legal documents is a disaster waiting to happen. Lawyers are trained to use legal terminology precisely and carefully, and in a way that a judge will be able to interpret according to a set of rules we all learn in law school. This requires a lot more than lay people attempting to use “everyday speak”. Keep in mind that lawyers are trained to find ambiguity in written documents. Imprecise drafting could cause ambiguity that keeps you in court arguing for years over what it is you just agreed to.
How much could this error cost you? A typical trial costs $40,000 to $60,000 on average. If one side is unhappy with the result and decides to appeal, you could easily double that. You could spend tens of thousands of dollars litigating issues you never saw coming because your non-lawyer mediator lacked the skill set of legal writing, and never thought to warn you about the consequences.
It really is not enough to use an attorney who went to just any law school. It takes a different form of education to prepare for certain kinds of cases. Schools outside of the top 20 tend to focus on the memorization of laws instead of understanding the range of outcomes that can come from each individual case. When you have a question about getting your security deposit back or if you’re wondering if the police can really do that, these are the people who would have the answer. This doesn’t help you in the family law context — the rules here are less clear, and a deeper understanding of how judges make decisions is necessary.
Accordingly, they rely on oversimplifications of law, without any understanding of the nuances, the exceptions, and the probabilities of various outcomes. Non-attorney mediators are as in the dark about your legal rights and entitlements as you are. Sometimes that is ok. Not everyone is interested in what they are legally entitled to, or what a judge would say if their case did go to trial. Some people (commendably) are so committed to avoiding court that these issues are not relevant to the agreement they want to create.
Often though, people want to know their rights and their likelihood of success in litigation, including all the costs and benefits. They want to be empowered and informed before accepting any negotiated outcome through mediation. Without such information, how could they possibly know whether they are reaching a “fair deal” or getting ripped off?
2) Specializes in mediation and does not litigate cases
Lawyers are taught to be zealous advocates for one client at a time. Their job is to fight and to win at the other’s expense. If your goal is to keep the peace, why would you hire someone like that?
There is never a moment when a litigation attorney sits between two spouses as a neutral third party. Their skillset is to use technicalities and legal leverage to apply pressure in favor of one party at the other’s expense. When litigation attorneys attempt to be mediators too, they have left their areas of expertise.
3) Is not a retired judge
Judges make the worst mediators. I really hate to say it because every judge I have met is an intelligent, conscientious, and well-meaning public servant. But their skill set is even less relevant to mediation than that of the litigation attorneys.
Judges tend to believe there is a “right” way to decide the case and a “wrong” way, and they lose the ability to see your case from any other perspective. The worst thing a mediator can do is to decide one side is in the right, and lose touch with the weaker aspects of their case. Mediations never settle when one side is convinced they’re sure to win at trial — why would they continue to negotiate if they have a certain victory? The danger is that any case, no matter how straightforward it may appear to be, can always be viewed from multiple perspectives. Having a judge decide who is right and wrong leads to mediations that do not settle and trials with surprising outcomes that can be devastating to you and your family for years to come.
One of the key values of mediation is that it empowers you to craft negotiated agreements that are custom-tailored to you and your family. Control of your family and your life belongs in no one’s hands but your own. It is not surprising that people are more likely to actually follow their settlement agreement — even the provisions they don’t like — when they had a hand in creating it themselves.
4) Has a background in Psychology
Every mediator knows oftentimes “its not the money, its the principle.” Over the course of the clients’ spousal relationship, many possessions, concepts, and actions become loaded with emotion.
Not cleaning the house, for example, could be an important concept for someone because psychologically it means to them that they aren’t being appreciated by their spouse. Sometimes deals cannot get done because one side is incapable of saying yes to an offer without feeling like they’re being manipulated, ripped off, yet again.
People have very different needs when it comes to how they are spoken to and presented with ideas they might not like. Some clients have mood disorders. Others don’t, but they act like they do when they are under stress. Some are stubborn and combative and have a hard time saying no. Some lie to your face and hide everything they can. It takes emotional intelligence to understand the psychological dynamics in play, and how they alter people’s perception of the mediation process. Its the difference between getting stuck on the “silly things” couples argue over and discussing what’s really going on.
Mediation is the process that helps you by listening and caring about what happens to you, and by working with you to achieve a workable plan for a happy life going forward. Very few people can resolve all of their divorce issues themselves — it takes help, but the right kind of help. Mediators with the qualifications I have listed are essential to help you minimize the harm from a potentially very stressful and damaging process.
5) Can speak from personal experience
Whether they have divorced themselves, or the child of divorce, being able to speak from experience is an important qualification of any mediator. It is comforting to know that someone understands what you are going through, relates to it, and cares about helping you reach the best outcome you can possibly achieve.
The effects of a family law case can last a lifetime. The nuances of the agreement you reach could be the difference between a divorce that runs smoothly and one that ends up back in court. When it comes to knowing which details will be important, there is just no substitute for experience.
By all accounts, divorce can be a time-consuming, expensive and draining experience. Even the best negotiations can be stressful at times and have moments of tension. Make the process as fast, easy, and painless as possible by making good decisions right at the outset. Give your mediation the best chance to succeed by making sure your mediation specialist has the right qualifications for the job. Contact Fair & Friendly Mediation Today!