Mediation, Step By Step

Lee Chabin
Director of Training and Mediation Program Development, Community Mediation Services, Inc.

A Divorce Mediation Case (Part 1 of 4: The Decision to Try & the Consultation)

In a moment, we will meet Angela and Bill, a couple about to go through a realistic though hypothetical divorce mediation. They will pay (combined) $3,350 for divorce mediation services. By contrast, in many actual litigated divorces, each spouse pays more than twice that amount ($7,500 or more) for the lawyer’s retainer. $15,000 between them, and very often that is just the beginning of the court process.

But in going through mediation, many spouses are like Bill and Angela in regard to the fees they pay – incurring costs lower than $3,500 for their session. For couples who split the cost in half, that is $1,750. [This assumes the mediator charges $300. If the process takes eleven hours – more time than the large majority of my cases take – that is $3,300.]

Note: When I say ‘going through’ and completing mediation, I mean that parties have reached agreement. The agreement then needs to be written and filed with the court (both of which are also necessary for spouses who choose not to mediate). There is still some work (and expense) once mediation is over; but when spouses have reached this point, they have gone a very long way in the overall divorce process.

Now, let’s meet Angela and Bill. In this post, and the next three, we will follow them over the next several months, as they deal (sometimes heatedly) with their conflicts, assisted by the mediator.

Bill and Angela have been married for ten years, and have already decided to get a divorce. They have two children, ages six and nine. They own a home, some other assets and a couple of credit cards. We could add many more facts, but using these should be enough to illustrate a fairly representative divorce mediation case in which the spouses have a few strong disagreements that they need to address.

Dates/What Bill, Angela and the Mediator Are Doing

October 19th, 2015

Angela calls the mediator, who answers several of her questions.

October 20th, 2015

Angela tells Bill what she has learned about mediation. She tells him that:

● this mediator charges $300/hour;

● the mediator would work with both of them, together;

● they can split the fee (and Angela says she is willing to split it);

● there is a consultation that they would both have to attend together, which costs $50.

● in mediation, the mediator is paid at the end of each session (unlike most attorneys who require a retainer upfront).

● the two of them, Bill and Angela would be the ones making decisions about their children and everything else; the mediator wouldn’t decide for them.

● if they were to begin mediation, either Angela or Bill could end the process at any time.

October 25th,2015

Bill and Angela discuss trying mediation.

● Angela wants to try it.

● Bill is reluctant, thinking of it as a touchy-feely waste of time. But, since the consult is $50, and he would pay $25 of that, Bill agrees to the consult. If it doesn’t work out, not a big deal.

● They look at a calendar and choose two dates/times that they both will be available.

November 3rd, 2015

Angela and Bill attend the consultation and learn more about mediation.

● They both like the idea of saving money – as opposed to what litigation costs.

● They would like the process to be amicable (as much as possible), especially as they have fairly young children – meaning that even when divorced they’ll have to interact with each other for many years.

● The mediator won’t guarantee anything, but tells them that many couples complete mediation within 6 – 12 sessions.

● Having children, and owning a home and other assets – and having some major disagreements on a few very important matters – the mediator offers that the case will probably take longer than 6 hours. “Let’s say it takes 10 hours,” the mediator suggests, noting again that it could be shorter or longer. “That would come to $3,000, plus the $50 for the consultation.”

● The mediator adds that, finishing mediation doesn’t mean couples are divorced. There are things that come after:

“Whether you mediate or go to court, you’ll need a document that in New York is called a ‘separation agreement’; it is essentially all of the agreements spouses come to, written up in a format that the courts require.”
“A lawyer will be needed to write that agreement; if you’d like, I can do that for you. I charge $1,500 for that service. But you are free to choose another lawyer, if you would like to.”
The mediator informs Bill and Angela that “I always encourage people to each meet with their own ‘review attorney’ to go over the agreement before signing it. Remember, as a mediator, I would be working to help you both. Your separate review attorneys would each represent one of you.” (“If you would like, you can certainly hire a lawyer to consult with at any time before or during mediation.”)
There is also a ‘filing fee’ that people need to pay to the court, again, whether they mediate or litigate.
● Angela and Bill read the “Agreement to Mediate” form, which largely sets out in writing how mediation works and other things the mediator discussed with them. They sign the form.

● The spouses schedule a first working session with the mediator for the following week.

● Bill and Angela pay $25 each to cover the mediator’s $50 consultation fee.

Next time: The Sessions on Parenting, Income & Expenses

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