Interviewer: I’m here with , founder of New Resolution. Paul, you’re a divorce mediator. Help me understand why divorce mediation is becoming such a popular choice for couples today.
Paul: I think it’s because people are increasingly recognizing that divorce actually creates a set of problems rather than a contest. The problems are things like How should we divide our property? How will we coparent our children after the divorce? And Will I need financial support? I think you see the difference: Contests beget winners and losers, whereas problems need solutions. If you think of divorce as a contest, then you should probably role the dice and play the litigation game. If you think of divorce as a set of problems, then mediation starts to look like a better way to go.
Interviewer: So you’re saying mediation is more solution-oriented than litigation. But I imagine some people feel a lot of emotion that makes it hard for them to be practical.
Paul: You’re right. Most divorces are steeped in emotion. You know, people are people. Yet some mediators think they can somehow force emotional parties into logical and cooperative behaviors. I personally think that approach to mediation is a mistake. It seems to me that our emotions are expressions of our authentic feelings. So I like to work with emotions rather than pretend their not there. So, for example, I spend a lot of time validating, reflect, and redirect emotions to help clients settle their disputes. At the same time, I’ll manage emotions when they get out of hand. I need to ensure that sessions provide a safe environment for clients to express their emotions without making anyone too uncomfortable.
Interviewer: Divorce is notoriously expensive. But are there other reasons besides saving money to try mediation?
Paul: Yes, there are several other reasons, though you’ve hit upon the biggest reason when you mentioned cost. The average litigated divorce in California costs about $50,000 in attorney fees per spouse — or $100,000 total. And I’ve known people spend as much as $150,000 when child custody is an issue. That’s enough to diminish or even completely deplete the estate of some couples. Mediation, in comparison, costs a fraction of that.
Interviewer: And the other reasons to try mediation?
Paul: I think we list a dozen reasons on our web site. Perhaps the most important is that mediation empowers people to make their own decisions rather than delegate decision-making to judges. I think that’s important because studies show people who are active in resolving their disputes do better emotionally as well as financially than those who pursue litigation.
Paul: Uhh. Another benefit is that mediation works. About 80% of cases actually settle in mediation.
Interviewer: Wow
Paul: … Yeah, and people are much more likely to stand by the terms of their settlement. I think that’s because they feel less resentment when they’ve participated in shaping its terms.
Interviewer: So, higher compliance. That makes sense. But does mediation ever fail?
Paul: Chances are that mediation will keep you out of a costly and emotionally damaging litigation. But it doesn’t always produce a settlement. Here I think it’s reassuring to recognize that trying mediation doesn’t diminish any of your rights to pursue litigation if mediation fails.
Interviewer: Okay
Paul: I like to think of mediation as a first resort, a provisional alternative to litigation. Uhh. Other important benefits are protecting children from the often-traumatic experience of an adversarial divorce; speed (mediation is usually much quicker than an adversarial litigation), and also convenience. We provide mediation in locations throughout the Bay Area, and we do our best to accommodate people’s schedules by offering evening and weekend appointments.
Interviewer: That’s great. … Now I don’t really like confrontation, so I’m wondering: What do you say to people who hate confrontation and just can’t face the idea of being in the same room as their spouse.
Paul: Well, we do offer telephone mediation, but that’s usually when one spouse lives outside the Bay Area or out of state. But in general mediation really works best when parties are in the same room with each other and the mediator. (Just in passing, that’s totally different from litigation, which isolates people, making them unable to communicate directly with one another.) So, we emphasize joint sessions in which both parties are in the same room with their mediator. However, we do also meet privately with each party to explore concerns or at points of impasse.
Interviewer: So each person has a chance to raise any issues they’re maybe uncomfortable saying while their spouse is in the room?
Paul: That’s right. I’m also watching the parties’ body language to detect any moments of discomfort. But hopefully there won’t be too many of those. The process is informal, open, and intrinsically non-confrontational. That said, it’s not a free-for-all. The mediator’s guiding the process at every step towards settlement without ascribing blame, fault, or guilt.
Interviewer: You’re not an attorney, right? Where do attorneys fit into mediation?
Paul: I’m not an attorney. There are attorney-mediators, but they aren’t allowed to give legal advice to either party while acting as mediators. If they did, they’d compromise their neutrality and face a conflict of interest.
Interviewer: That makes sense.
Paul: Yeah. I see the role of mediator and attorney as complementary but separate, Mediators are experts in conflict resolution. Of course, we have to know California’s Family Code, which is the divorce statute for California, but our primary purpose is to guide parties through a complex set of interlinked disputes around custody, support, and property division. Usually, the real blockages to a settlement are emotional issues, especially fear: Will I have enough money? Will I see my children? Will I have to find a new place to live? It’s these kinds of things rather than questions of law that are usually at the heart of why a husband and wife can’t just agree settlement terms over the kitchen table.
Interviewer: So what role would attorneys play in the divorce?
Paul: I think attorneys can play a very valuable role as legal consultants during a mediation process rather than as legal representatives in a litigated divorce. In fact, I recommend my clients consult attorneys for independent legal advice so their informed and empowered. And they should always have independent attorneys review any proposed settlement agreement before they sign it. Likewise, they might need to consult other experts during the mediation process such as real estate appraisers, business appraisers, CPAs, financial planners, and career counselors.
Interviewer: What are the best and worst parts of your work?
Paul: That’s a fun question! I’d say the best part is definitely watching the transformation that takes place from when people begin mediation to when they leave. In fact, there’s often a discernible moment during a session when I can feel the session tipping from conflict to collaboration. Those moments are electrifying. I think I do good work in saving people from an adversarial litigation, and I think I really make a difference in situations that are very high stakes in people’s lives.
Interviewer: And the worst part?
Paul: [Laugh] Mmmm. Well, I’d say this is hard work. My clients are often in a tumultuous phase of their lives. They’re sometimes scared, hurt, angry, anxious, worried. … And you have to be comfortable inserting yourself in the middle of conflict.
Interviewer: It sounds like you really love what you do.
Paul: I do.
Interviewer: And I want to thank you for letting me interview you.
Paul: It’s been a pleasure.