couple in mediation session

Selecting the Right Mediator is an Important Decision

Ever increasing court costs and wait times for court dates have made an already appealing alternative to dissolution litigation even more appealing. Mediation is a way for parties who want to control costs and maintain an amiable relationship during and post-divorce to get through the dissolution process. A good mediator can make the process as painless as possible for all involved.

However, an unqualified mediator can turn an otherwise smooth process into a nightmare. We have seen incomplete paperwork and agreements. We have seen people make decisions without being provided with sufficient information. All of this ends up landing parties in court- which is precisely what they were hoping to avoid in the first place. This can cause discord when one party wants to “get out of” an agreement when the other party believed the matter was settled. This can happen for many reasons, including inadequate information about rights and responsibilities, incomplete or impractical agreements, or information was not properly disclosed or documented.

While cost is always a consideration, it is important that the person you hire as a mediator is qualified to do the work you need, otherwise it could cost you much more in the long run. Keep in mind the adage, “buy it right or buy it twice.”

One thing you want to make sure of is that the person you hire is, in fact, an attorney. While this may seem like it will increase the cost, it is important for your own protection. First, attorneys who practice family law are familiar with the court system and the judges. They can provide you with a more complete understanding of the legal trends, a particular judge’s leanings, and any recent changes to the law that may affect your case. A non-practitioner will not be able to provide these sorts of insights. Second, attorneys can be held accountable to the State Bar even when acting as mediators. Keep in mind that non-attorney mediators are doing practically the same work as an attorney mediator; however non-attorneys are not subject to the same educational or fiduciary standards. Mediators do not have any accountability to the State Bar and cannot be used for malpractice. Mediators do not have continuing education requirements, however attorneys must do continuing education in order to retain their licenses. Additionally, attorneys generally carry liability insurance and mediators may not- thus there may be an insufficient source for mediators to pay for damages.

Experience as an attorney and training in mediation techniques are important. To be a settlement judge for the court, for example, an attorney must be in good standing with the bar for ten years and meet other experience based criteria. They also must undergo training in order to qualify as a settlement judge. It would be advisable to find a mediator who is also a Certified Family Law Specialist. This means that they 1) passed a bar-like exam focused on family law, 2) were recommended by other attorneys and the judiciary, and 3) met the experience criteria to be considered an expert in the area of Family Law. Finally, there are also recognized institutions which provide mediation techniques training, for example NCRC (National Conflict Resolution Center). Any mediator you choose should have a current certification from a recognized instruction that provides mediation training.

Here at the Law and Mediation Firm of Klueck and Hoppes, we provide excellent options for mediation. Mr. Klueck is a Family Law Certified Specialist. He volunteers as a Family Law settlement judge and has prior experience sitting as a Small Claims Judge. He teaches Community Property at Thomas Jefferson Law School. In addition, he performs case work in Family Law matters and a trained mediator through NCRC.