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Expanding the utilization of neutral professionals in the family law mediation process

During a mediator’s initial interview and discussion with prospective mediation parties, mediators evaluate the parties as well as the subject matter the parties wish to resolve, and whether mediation is appropriate.

It is not unusual for the communication habits between two parties, which developed during their relationship and inevitably played a part in the dissolution of their relationship, to be front and center in their mediation process. Despite the attempts by the mediator to keep the parties communicating in a healthy manner, the parties may inevitably fall back into unhealthy communication habits. This might lead to an end to the mediation process in some cases.

Similarly, prospective parties may have an unbalanced knowledge of or comfort with the financial issues of the marriage. One party may have managed the financial aspects of the relationship, while the other party has had little or no involvement during the marriage. This power imbalance, in some cases, can impact a party’s ability to understand the financial aspects of the relationship, as well as their ability to discuss and make decisions regarding their financial status, needs, and future.

What might a mediator suggest to assist the parties in moving forward and arriving at a successful mediation agreement? Suggesting that the parties agree to include a mental health neutral or financial neutral (or other neutrals, such as a child specialist, a real estate expert, or other neutral professionals) can provide both parties with the skills and information they need to facilitate the process.

A. Financial Neutral Professionals

The neutral financial professional (“Financial”) will assist the process as follows:

a. Guide the parties on which documents they will need to provide in the process, such as account statements, tax return documents and income information, mortgage and credit card statements, lists of high-value contents and collections, etc.;
b. Provide settlement options for both property division and support/alimony;
c. Assist in explaining QDROs and other such documents, if necessary to the process;
d. Discuss any tax and capital gains issues resulting from property division;
e. Calculate and provide net income available for support;
f. Ensure both parties have the same level of understanding of the finances to reduce any power imbalance and promote confidence for both parties;
g. Model different settlement options for the parties;
h. Illustrate long-term consequences on cash flow and retirement;
i. Assist in developing budgets;
j. Trace assets in the appropriate case to reduce suspicion that one party is hiding assets or has an unfair advantage;
k. Value a privately held business; and
l. Empower a party with less financial knowledge to make confident economic decisions in the process.

The use of a financial neutral can serve to level the playing field between the parties. While the party who is more comfortable with the process may not need this assistance to the same extent as their partner, that spouse can “buy into” the inclusion of a financial neutral if they are focused on the overall goal of a successful mediation.

Without a financial neutral in the appropriate case, cases can be doomed to failure. The less confident party may become frustrated with their own sense of inadequacy and “give up” on the process, seeking the perceived “comfort” of traditional representation. The inclusion of a financial neutral can, at times, save a process that might otherwise fail.

A. Mental Health Neutral

In the appropriate case, the use of a mental health neutral (“MH”) can be useful in keeping the parties on track and preventing the patterns that led to their divorce or separation from impacting their dispute resolution. Anger, poor communication patterns, distrust, and other issues can prevent a process from reaching resolution. Parties often enter mediation with these roadblocks, which can develop into patterns that interfere with the process.

Having the parties agree to work with a neutral MH to address these roadblocks and provide tools to complete the mediation process can help them move forward.

What will the MH do for the parties?

1. Assist the parties in managing their emotions, identifying the roots of those emotions, and developing effective communication skills;
2. Teach communication and conflict management skills. This is important not only for resolving current divorce issues but also, if they have children, for developing healthy future communication habits;
3. Help the parties avoid impasse caused by destructive patterns and work toward resolution through collaboration; and
4. Educate the parties to focus less on outcomes and more on discussing their interests, while gaining a better understanding of the other party’s interests.

The MH may work with the parties individually, as well as jointly, depending on the circumstances. This work may occur outside the presence of the mediator. The goal is to address long-standing communication dysfunction and teach healthier communication patterns.

The involvement of an MH is especially important when the parties have minor children. They will need to co-parent effectively after mediation, and these learned skills can form the foundation for better communication moving forward.

A. Child Specialist

A Child Specialist (“CS”) is a mental health professional trained to provide services to children and adolescents.

In appropriate cases, a CS can provide information to both the parents and the mediator regarding the needs of the child or children.

What are the benefits of a CS in mediation?

1. In cases where a child has special needs (such as autism, developmental disorders, or other circumstances), a CS can provide guidance. Specialists in areas such as anxiety, mental health needs, or substance-related issues can be involved to help shape custody arrangements or allocate unique expenses;
2. The CS is neutral, like the other professionals mentioned, and serves the interests of both the parents and the child without bias;
3. The CS can help give a voice to a more mature minor child in custody discussions, which may influence custody arrangements or decisions such as school choice;
4. The CS can advise parents in developing custody schedules that serve the child’s best interests; and
5. The CS focuses on the child rather than the parents’ positions and can provide important perspective to parents who are receptive to it.

Appraisers and Valuation Experts

Often, various types of personal and real property must be valued for equitable distribution. Bringing in a neutral professional, jointly selected by the parties, provides an unbiased valuation.

What is the value of involving these professionals in mediation?

1. The neutral professional provides an agreed-upon value for businesses, real property, collections, personal property (when applicable), and similar assets;
2. Their involvement avoids disputes over “what something is worth,” which often arise when parties have conflicting opinions; and
3. They help avoid reliance on unreliable information from social media or the internet when determining value.

Conclusion

In the appropriate case, using neutrals in mediation can provide a more balanced and informed process. It promotes transparency and reduces overall conflict and costs.