Divorce Mediation Plants Seeds for Family Success
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Family law attorney/mediator Beth Henson has been a mediator since 2001. She had been working as an attorney at a family law firm from 1994 to 2001, then left to open up a mediation practice for family law.
She was named the 2016 Denver Family Law Mediation "Lawyer of the Year," and has been listed as a Colorado “Super Lawyer” and a “Best Lawyers in America in Family Law Mediation” every year for nearly 10 years.
I met her when I was touring the Resource Center for Separating and Divorcing Families in Denver (now The Center for Out of Court Divorce). I sat in on one couple’s mediation session with Beth, and on the granting of the final divorce decree to another couple she had helped. I was totally impressed with her clarity, calmness and helpfulness, and really wished my husband and I could have done our divorce in Denver.
Wendy Paris: Studies show that mediated agreements tend to stick, and make people happier than those hammered out in court. Why does mediation lead to better agreements?
Beth Henson: With mediation, you’re getting the education and balanced, unbiased feedback. That’s the biggest point. It’s balanced. I’m going to ask both parties the questions that relate to them, I’m going to ask how something affects both sides.
A mediator will give a balanced presentation of the issues. It’s part of our job. What is the best overall result for the family and especially the kids? Sometimes it means that one side will give up things that they potentially could have gotten in court, but it would be such a detrimental affect on the other person, they’re willing to give it up.
Whereas if I’m an advocate, I’m not concerned with the protections for the other person. I’m only concerned with the protections for my client. This could affect the financial and emotional well being not only of the other person but also the children going forward.
If you have one person suffering dramatically financially, the kids are going to be affected by that. Emotionally, if the parents take a scorched earth policy, it creates such negative feelings that the ability to co-parent is seriously affected in a negative way, and that will impact the wellbeing of the kids.
Mediation provides an ideal blend of information, education and guidance along with structure, but ultimately allows the parties self-determination and the ability to make the transition in a graceful way, with dignity.
Wendy Paris: Why did you leave family law and switch to mediation?
BH: I really like family law, and have since law school, the people aspect of it. But I was finding that it was getting more and more contentious—the cases I was getting, the clients and the attorneys I was working with. I joke, but it’s true, I’m an attorney who hates conflict. I love the law part of it, but not the conflict and the stress.
I had a couple cases I litigated where I felt the result was so unfair. You can lose a case, but still kind of understand why the judge ruled this way or that. But I had a couple, back to back, where it made no sense at all and it seemed really unfair. It made me feel crappy and I didn’t want to feel crappy in my job. Around that time, mediation was just starting to become a requirement in Colorado. It had been around, but it was new for courts to order it. They were starting to do it more and more. Now, it’s almost mandatory in most Denver metro counties. It seemed like there were three to four people in town who were doing mediation and they were always busy. I had done mediation as an attorney, and it felt like a really good fit for my love of family law, without having to be adversarial. And it seemed like the business was there. I was right. I now call myself an attorney-mediator. I am a licensed attorney and am very active in the family law section. I do some representation and appeals, but I’m an attorney who basically limits her practice to mediation.
Wendy Paris: What’s the difference for a couple going through divorce with a mediator, versus with two lawyers?
BH: Starting with the practical, there’s the cost; the hourly rate for mediation is usually lower, and typically, parties share that cost. If you hire an attorney, the hourly rate is often higher, they typically require a substantial retainer, and you’re paying that by yourself.
In terms of services provided, the attorney’s role is to advocate for their client and to try to get them the best deal they can. It’s to be an advocate.
For a mediator, the premise is that you’re a neutral. You’re there to educate, provide guidance, information, and clarity.
But I don’t have an obligation to either party to the detriment of the other. I am not an advocate for either one.
Then there’s a difference in time commitment. For the clients, it’s a much shorter relationship than when you hire an attorney. If I have a couple that does not have lawyers, on average they usually come to see me twice. Two meetings, each one about three hours. Then I draft the agreement and send it out to them. Some couples get it done in one meeting, and others have to come back multiple times. Every case is different, but with mediation, you’re in and you’re out. I am very focused on them in that time frame. When they leave, I’m done, other than I might write up an agreement.
I always say, “This is my understanding of the terms we discussed in mediation.” I encourage them to have a lawyer look at it. But my role is done. It’s up to them to get a lawyer to look at it if they want, to sign it, and then to file it with the court. I can educate them about how to file it with the court.
Wendy Paris: Why do they need a lawyer also? You’re a lawyer.
BH: I am a lawyer, but I’m not their lawyer. I am not an advocate for one or the other. They should get a lawyer to look at it to make sure it protects them specifically. Some lawyers will do the review of the agreement without requiring a retainer.
In my mind, the best scenario is that you come to a mediator, and then have an attorney review it before you sign.
You don’t hire the attorney with a full-on retainer; they just help you with the review.
Wendy Paris: What if they use a mediator, then bring it to a lawyer for review, and the lawyer says, “Wait! You could get more!”
BH: I try my best to tell them that if they bring it to a lawyer, these are the points the lawyer will likely bring up with them. Like, if they’ve agreed to a maintenance that is lower than the guidelines suggest, I’ll say, “When you go to a lawyer, they will probably tell you that these guidelines are too low, and it’s up to you to decide how you feel about the whole agreement.” I’ll say, “If they tell you that you can do better on this one issue in court, ask them about everything else. They might say you’ll do worse on other issues that are important to you.” It’s up to them to decide whether they are comfortable with the terms based on all the circumstances.
For example, I’m working on an agreement where they agreed to not include the husband’s bonuses as part of the calculation of child support and maintenance, even though the Colorado court likely would have included it. But in exchange, he’s agreed to pay 100-percent of both children’s college tuition. Here’s a perfect example of, if she’d gone to court, she probably could have had the bonuses included as income for support purposes, but could not have gotten an order that he pay for college. College was really important to her, and this felt fair to both of them.
Wendy Paris: Who is mediation not for?
BH: It depends on whether or not they have attorneys. If you have no lawyers, mediation doesn’t work in domestic violence cases, where there is substance abuse, and even mismatched personalities, where one is very overbearing and dominant, and one is very passive. But all of those cases can be possible if an attorney is present to protect the disadvantaged spouse. It can’t hurt even in those cases. If it doesn’t work out, they leave. It’s confidential. The court doesn’t hear about it. I don’t impose any solution on them. Half my practice is with clients who also have lawyers. Sometimes they bring the lawyer. One lawyer and client sit in one room, and the other lawyer and client sit in the other. I shuttle back and forth.
Wendy Paris: Thank you!
To contact Beth Henson, read more about her approach and mediation in general, check out hensonmediation.com.
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Wendy Paris is the author of Splitopia: Dispatches from Today's Good Divorce and How to Part Well (Simon & Schuster/Atria, 2016). Splitopia and her work on divorce have been covered by The New York Times, Real Simple, The Washington Post, The New York Post, The Globe & Mail, Psychology Today, The Houston Chronicle, Salon.com, Parents.com, Family Law Quarterly, PsychCentral.com and radio and TV shows nationwide. She has an MFA in creative nonfiction writing from Columbia University, and is an advocated for family law reform. She is divorced, and lives in Santa Monica, California, a few blocks from her former husband, with whom she has a warm co-parenting relationship.
