Hiring Experts in Mediation – It’s very Different than in Litigation

In both mediated cases and those litigated in court, experts may become involved; but their roles can be very different, depending on which process they are involved in.

A psychologist in a litigated case:

In a divorce case where there are children, a forensic psychologist will most likely be appointed by the judge, if the parents are involved in a custody dispute.

In large part, the job of the psychologist is to determine who is the better parent. And, who is the worse parent. The reason for this is that the issue in court is essentially, “Who will get custody of the children?” Someone will ‘win’, and someone will ‘lose’.

Parents and children will meet with the psychologist, separately. Many of the questions asked may be intrusive. Often, one or both parents is frightened of “losing the children”. Even loving and nurturing parents can be tempted to coach their children, telling them what to say to this mental health expert whose report may well have a significant impact on the outcome of the litigation. Unfortunately, a few parents will ask or tell the children to lie, and the consequences can be devastating and long lasting, for instance, when a child is instructed to allege abuse where no abuse has taken place.

A psychologist in a mediated case:

In mediation, the question is not “Which of you will get the children?”, but rather, “How will each of you (Mom and Dad) spend time with your children, so that you can be the best parents you can be to them, and so that your children can get the most from both of you?”* [Please note that I am not talking about a situation where there may be abuse; that is another discussion.]  Usually, parents are able to answer this question on their own, without looking to a mental health professional.

But, if a psychologist or other mental health professional is needed during mediation, the purpose might well be to have a child meet with that person to help the child, by engaging in play therapy, let’s say, where the child’s play or drawings might reveal anxieties that can then be addressed. The child can then be helped to feel more secure; the adjustments and transitions made easier and less scary.

A financial expert in litigation:

In a court case, you might hire someone to tell the court how much the marital home is worth. Your spouse might do the same. It is likely that your experts will come back with different determinations as to what the value of the home is: Probably your expert will state a number or range that favors you; and your spouse’s expert will give a figure or range that favors her or him.

Possibly, the court may ask that a third expert be hired to settle the disagreement between the original two.

A financial expert in Mediation:

In mediation, you and your spouse would discuss the need for an expert to put a value on the house; and then, if you were to jointly decide that it would be worthwhile to hire someone, you would determine how to choose a qualified professional acceptable to both of you. You would decide on how to handle the person’s fee, perhaps splitting it in some fashion; perhaps not. Either way, there would be only one expert to hire regarding this question, saving you money as a couple. You could instruct the expert to provide the most neutral and balanced appraisal possible.

Conclusion:

In mediation, you have the choice of calling upon an expert to provide solid information or to assist in solving a problem.  By contrast, in court, a judge may make such a decision for you; and there, the circumstances and the outcome may feel much more threatening.

*Paraphrasing Erickson and McKnight Erickson, Family Mediation Casebook:  Theory and Process.

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All blog posts are for information purposes, and should not be considered as legal advice.

Yeah, it’s Voluntary; What else is Mediation? Impartial

In my previous post, I began to discuss what the process of mediation is, and explained that it is voluntary.  Mediation is also:

  • Impartial (some use the word neutral)
    • As a mediator, I work with both (or all) of the parties.  I work to understand each person, and to help them consider and speak about what s/he wants and needs for the future.  In the context of divorce, this often means talking about a place to live and how to pay for this and other expenses; and, if there are children, about spending time with them, and making decisions in regard to raising and caring for them.
    • I do not represent either (or any) of the parties; representing one party against another is something a lawyer often does.  Again, as a mediator, I work with all of the parties, helping them to gather and share information, to develop and consider options for going forward, and ultimately in reaching their agreements.
    • My role is to help the parties to communicate constructively, to guide them in considering and addressing all of the issues that they need to, to ensure as I am able to that their proposed agreements are workable (reality testing), etc. Without taking anyone’s side.

To be continued . . . .

 

Introducing My Blog

Welcome to my blog!

My goal is to discuss divorce and other family matters, such as marital problems between spouses who want to remain together, and parent-child conflicts.

In large part, I will offer information about mediation, which is a way to resolve conflicts without going to court.

Additionally, I intend to write about:

  • Attorneys (I happen to be one myself) and litigation;
  • Matters that affect families (such as what children are most concerned about when their parents divorce), regardless of whether the parents choose mediation or litigation.

I hope you will find material here that will benefit you and your family.

Sincerely,

Lee Chabin