THE FIRST STEP is to have a conference with both parties present and that conference costs $400 and takes approximately an hour. At the end of that conference, all of us have a very good idea if the process is going to be successful. In fact, most cases are resolved during that first session and the only thing that is left is to draft an agreement, or to obtain additional information before drafting an agreement to make certain that each party has fully disclosed her or his finances and nothing is hidden.
If after the first meeting, we decide that it is worthwhile going forward, I will require a retainer payment or an advance payment of fees depending on the complexity of the matter. A simple mediation retainer may be as little as $2,000 while a more complex one may be approximately $5,000. My time is charged at the rate of $400 per hour and when the retainer is expended on a time basis, additional fees must be paid as they are incurred.
I then draft an agreement for the parties. If there were two attorneys, and the case were settled, one attorney would draft the agreement and often that attorney drafts the agreement in such a manner that it is most favorable to his or her own client. Now the other attorney has to go through it carefully and try to be certain that the final draft is more favorable to his or her own client. The process only adds to the expense and the exacerbation of the problems. By having a mediator draft the agreement, it is more likely that it will be drafted objectively and that there will be a minimum of back-and-forth after it is reviewed.
Once the agreement is drafted, I strongly recommend that each party review it with independent counsel for one meeting. I try to educate the parties so they know that attorneys generally try to improve the deal that is on the table and that it is important that the parties go to their respective attorneys committed to sticking to the deal made at mediation, unless they are advised that the deal is substantially varied from what the court may do and is unfair.
The role of independent counsel in reviewing the agreement is to (1) make certain that the deal does not vary significantly from the reasonable result that a party will get in court, and (2) to make certain that the agreement is drafted well and accurately reflects the deal that is made. Before sending the parties to independent counsel, I make certain that they have a good idea of what a court is likely to do so that if their independent counsel advises something that is significantly out of the range of what I advise, the parties will know and will reject any attempt to disrupt the deal.
Finally, once the papers are signed, and the parties agree on who will obtain the divorce and what the grounds are, I am able to handle the divorce process provided both parties waive in writing any possible conflict, since one attorney is not permitted to represent both parties. In the situation I present, there is no real conflict since everything has been agreed upon and since the parties have had independent advice or an opportunity to seek independent advice.