When to Hire a Non-Lawyer Mediator

Sometimes, when I'm chatting with an acquaintance the topic of divorce will come up.  On this occasion, the man was saying that he and his wife were hiring a "non-lawyer mediator" because they didn’t want a lawyer "messing-up” their settlement.

This sort of thing happens all the time.  People think they have reached a deal with their spouse only to have a lawyer muck it up.

Hiring a non-lawyer mediator can be an option.  Sometimes, this approach works well.  Other times, it ends-up causing more problems than it's worth (e.g., deals crafted by non-lawyer mediators can be rejected by judges because they don’t follow best practices).

What should you do?  Here’s the skinny.

If you and your spouse want to use a mediator, go with whomever feels comfortable.  Mediation is supposed to be a facilitative process (i.e., the mediator doesn’t give opinions or recommendations) so it shouldn't really matter who you use.

A better approach, though, might be to participate in a Social Early Neutral Evaluation (“SENE”) or Financial Early Neutral Evaluation (“FENE”) program offered by the court system.  In many ways, these processes resemble mediation.  They are relatively inexpensive, settlement driven, and confidential.  But, unlike mediation, ENE's allow the evaluator to give feedback about how they believe the case should be resolved.  This can help settle disputes because you have more information about what a judge might do if a settlement isn't reached.

Because ENE's involve opinions, it’s critical you choose the right person.  I believe all FENE evaluators (money experts) should be lawyers with recent litigation experience.  Who else can tell you what a judge might do?  Most SENE evaluators (kid experts) should be lawyers too.  But it's okay to use a psychologist, therapist, or social worker, if the person has a good deal of family law experience.

It’s important to understand that ENE's require a court order.  This means that you must have started your divorce case and filed it with the court to participate in an ENE program.  However, most ENE providers will do “evaluative mediation” (basically the same thing by a different name) without a court order, if asked.

Don't get discouraged by the many different options.  They're all pretty simple.  Mainly, they are designed to ensure you keep control of how your divorce is resolved.