Mediating the end of divorce: A kndler, gentler divorce
A Kinder, gentler divorce?
Some couples have discovered mediation can be a less explosive approach to divorce than a judge. The mediator serves as coach, counselor, consensus builder and occasional referee. And the couple, not a judge, makes the decisions.
By Judith Valente
Special for USA Today

After 24 years of marriage, Charles and Lucy Rey decided to call it quits.

Lucy complained that Charles, president of a Chicago research firm, was a workaholic. Charles said that Lucy, a social worker, left him for another man, Both agreed, however, that they wanted an amicable parting for the sake of their two children. Instead of battling it out in court, they turned to a divorce mediator for help.

For five months, the Reys sparred about the value of Charles' company and whether Lucy should get a stake in it. They fought about their $200,000 house in Naperville, Ill; nearly $215,000 in stocks, bonds and retirement funds; the Saab and the Audi; and even who would keep the dog.

Ultimately they reached an agreement that both still say was fair.

The Reys, who divorced in 1998, were at the forefront of a growing trend. Today large numbers of divorcing couples are shunning courtroom battles and working with a mediator. In mediation, the couple, not the judge, decides who gets the kids, the house, the cars and other marital assets. The mediator serves as coach, counselor, consensus builder and occasional referee.

"We smooth the waters so couples can talk with each other and express their needs in a respectful context," says Carl Schneider, who mediated the Reys' divorce and now practices in Silver Spring, Md., near Washington D.C.

Mediation isn't the same as arbitration, in which a hearing officer listens to both sides, then hands down a decision. In mediation, there are no cross-examinations, no depositions, no stenographers.

Divorce mediations can take anywhere from a few weeks to six months, depending on the issues to resolve. The costs range from a few hundred dollars to several thousand dollars, says Ericka Gray, executive director of the Academy of Family Mediators. In a contested divorce, lawyer's fees easily can run upward of $10,000, and the proceedings can drag on for years in court.

Some couples see more than just financial benefits. Actor Clarence Gilyard of TV's Walker: Texas Ranger says he's received emotional support from Forrest Moste, a Los Angeles mediator and family law specialist, during his 1994 divorce from actress-writer Catherine Gilyard. " I could tell him everything I felt," Gilyard says of Moste.

No official statistics exist on how many divorces go to mediation each year But, the number of divorce mediators has ballooned to about 3,600 from 100, says the Academy of Family Mediators. Since 1984, more than 5,000 people have enrolled in the American Bar Association mediator training program.

In choosing a mediator, it's a case of "couples beware," because no official licensing agency oversees the field. "Anyone can hang out a shingle," Gray says. However, many mediators belong to the Academy of Family Mediators, which sets standards of practice for its members. The Academy also serves as watchdog and will investigate complaints against members and initiate a grievance proceeding, if necessary. A large number of mediators are also lawyers or licensed counselors, Gray says.

But mediation doesn't always work. Michael Weiser, 34, a graphic artist from Chicago, thought he and his wife of two years would be ideal candidates for mediation. The Weisers had no children, didn't own a home and had few assets. But at their first session, the couple argued about who would get the china, a wedding gift.

"She started complaining that this wasn't working and got up and walked out," he says. They never went back. Weiser ended up with a court-ordered settlement that requiring him to hand over the china, but also six months rent on his wife's new apartment and substantial lawyers fees.

Still, several studies have shown that 60% to 65% of couples who mediate are able to hammer out lasting agreements.

Mediation is less expensive than a court battle, but it isn't cheap. Fees generally range from $90 to $200 per hour. Mosten, a Los Angeles mediator who is also a lawyer, charges $450 an hour. Schneider, a clinical psychologist, charges $150.

And lawyers are still part of the process, though a small one. They mainly review the final settlement and represent each side when the divorce decree is finalized in court. And couples who mediate sometimes choose to consult lawyers. This raises the cost significantly, especially, says Mosten, if either partner uses the process "to punish each other, to extract revenge."

But some women's groups remain skeptical of mediation. "It works when couples have a reasonably equivalent balance of power in the relationship," said Lynn Hecht Schafran, a lawyer at the National Organization for Women in New York.

Schafran says battered wives are at a major disadvantage. "It's absurd to think that a woman who has endured domestic violence is going to speak openly and make demands in a mediation," she says.

The Reys' settlement has held firm for nine years. Charles, 63, remarried in 1989 and lives in Deerfield, IL. His company went out of business in 1984 due to cutbacks in NASA's budget. He now operates his own research consulting firm.

Lucy remarried in 1993 and resettled in Las Vegas, where she is a family therapist. Of her mediation, she now says, "I would do it again, but I would have two mediators, one male and one female."

Says Charles, "If everybody walks away just a little unhappy, it's probably been a fair mediation."