Usually, I only ask for retainers when there is a lot of work to do by phone. In situations where it is counter-productive for the husband and wife to be in the same room together, speaking to them separately by phone is a necessity, including calls to their attorneys, in order to move things along.
I once had a case where I told the client, “I don’t usually charge for emails and phone calls.” The client started emailing me regularly. By the end of the month, I had received 83 emails, and had a better understanding of why some mediators charge for emails and phone calls.
And the questions! They may seem simple, but the answers are often complex. Most clients are unfamiliar with divorce law, so complex answers lead to additional questions. Lots of questions! I ask them to write them down and discuss them at the next mediation session, but they want the answers “N-O-W.” It’s often problematic, and as a mediator I have to remind myself that they are in conflict and are looking for help.
Some clients don’t want to pay for additional work, like modifying an agreement. One client said, “You know, you are nickle-and-diming me. I sent you a list of changes and it shouldn’t take very long to implement those changes. Maybe a few minutes.” It took three hours and a dozen emails.
Clients don’t always understand that agreements have to be written from a legal/litigation perspective. What the client believes is going to take a few minutes often takes a lot longer. It takes more time to rewrite a client’s language than to create a clause from scratch. The Internet is not a place to learn about practicing matrimonial law. When a judge is reading a Settlement Agreement it should be clear, concise and unequivocal. It should not be written by a plumber who just read something on the Internet.
Mediation costs a fraction of litigation, and yet some people have to be reminded of that. The mediator is there to help you. He or she is not posturing or taking sides or trying to drag things out. To the contrary, the mediator is trying to move things along while giving you lots of information so you can make informed decisions.
When you are spending time with your mediator, remember that the mediator has spent countless hours in law, financial, psychology, domestic violence, substance abuse and child issue related trainings. What you, the client, is paying for is years worth of knowledge that the mediator uses to help you through this difficult and somewhat confusing time.
Comments from Social Media
Excellent blog Don. I’ve reTweeted, re-Linkedin and Facebooked it!
Stephen G, Anderson
It always helps to have a cost associated with an action (like emails and phone calls) so the client will stop and think first. Free emails and phone calls are like candy in a candy bowl – why not just take a handful?
Michael Fancher, IACP
Don, mediators consider themselves professional and retainers acknowledge that. Our state rule allows for administrative costs and mileage to be added and there are limits, like not to exceed hourly charge. A key to the professionalism is what one does with cancellations. I usually allow a reschedule and don’t fiddle with charges, maybe not hardcore professional, but human relations are important……
Paul Rajowski, M.A.P.
A client of mine and I for years used to both be invited to speak at meetings where ADR was on the agenda. His thrust was that, while reduced cost was certainly one benefit of using mediation, the fact that the parties controlled both the process and the outcome (which was not limited to the traditional recovery of litigation) was always his main reason for detouring a case out of the courts. He understood the process and its potential.
Don Reder, ADR, Conflict Resolution and Mediation
I think a better title for the article is “You Get What You Pay For.” Mediators and lawyers essentially rent their time– whether it is spent on the telephone, or writing e-mails, or meeting with clients, or drafting documents, or studying the file, etc. While mediation usually costs less than a litigated matter, it’s not always super-cheap. Some couples can get through mediation in much less time than others. Difficult situations can take a lot of time, and it’s worth spending the time to do a good job and arrive at solid results. Mediation clients should hire quality mediators and be prepared to spend what it costs on quality results.
Carolyn Swiggart, Marital, Divorce, Family Law & Finance
I believe that mediation would be more prevalent if alternatives to litigation were being discussed more in various circles. I know that I never once thought about mediation until I actually began mediating. I believe it takes a transformation of one’s mindset…creating a win-win for both parties involved…until both parties get beyond winning, they will probably continue on the course with which they are headed.
Synaya Jones, MAP