Before you book a family mediator: questions that show who can settle your case

What to find out before you commit to a mediator

Ask any family law mediator five things before you book: what family-specific training they have, how long they have worked in family law itself, whether they have any connection to either side, how they run a session and handle high conflict, and exactly how they charge. The answers tell you whether this person can evaluate a custody schedule or a property split the way a judge would, and whether both sides will trust them. Temperament matters as much as the resume, so pay attention to how they answer, not only what they say.

I am John Polk, a family law attorney, mediator and parenting facilitator in Dallas. I have practiced family law for more than 25 years and mediated for as long, and lawyers often bring me the cases that other approaches have not settled. What follows is the list I would want a friend to use, whether or not they end up with me. It is general information; your attorney, if you have one, should weigh in on the choice.

Training: the minimum Texas expects and what lies beyond it

Texas sets a floor for mediators appointed by a court. Under the Civil Practice and Remedies Code, a court-appointed mediator generally must complete 40 classroom hours of dispute resolution training, and for disputes involving the parent-child relationship, an additional 24 hours in family dynamics, child development and family law, including at least 4 hours on family violence dynamics. The same statute lets a court appoint someone without those hours based on other legal or professional training and experience.

So the first question is simple: have you completed the family mediation training, and when? The more useful follow-up is what the person has done since. Forty hours teaches technique. It does not teach what a family court actually does with a request to move a child across the state, or how a judge treats a separate-property claim with weak records.

• Have you completed the 40-hour and the additional 24-hour family mediation training?
• How many family cases do you mediate in a typical month?
• What share of your practice is family law, as opposed to other civil disputes?

Why years in family law matter more than years mediating

A mediator's most valuable tool is credibility when they tell a party, privately, that a position is unlikely to survive a trial. That only works if the mediator knows what trials produce. Someone who has handled divorce and custody cases as an attorney has seen how judges rule on possession schedules, reimbursement claims and child support deviations. Someone who has only mediated may be skilled at keeping a conversation going but less able to tell either side when they are wrong.

My own site puts it this way: choose a mediator for experience, expertise and temperament. I would add that the experience should be in the kind of case you have. Ask whether the mediator has handled cases with a business to divide, a relocation request, a special-needs child or a parent with a substance concern, whichever applies to you.

It also helps to ask what the mediator has seen after cases end. I have worked as a parenting facilitator and coordinator for Dallas-Fort Worth families since 2012, which means I see what happens when a possession schedule is vague or a holiday clause was never thought through. That shapes the questions I ask before an agreement is signed, because terms that sound fine on mediation day are sometimes the ones that bring parents back to court two years later.

Conflict checks and neutrality

Before the session begins, a mediator should disclose any interest in the dispute and any known relationship with either party or their lawyers that could affect, or appear to affect, neutrality. That is one of the Supreme Court of Texas Ethical Guidelines for Mediators, and the same guidelines say a mediator should not serve if a party objects based on a conflict or a perceived one.

Ask directly: have you ever represented or worked with either of us, or either lawyer's firm, in a way that matters here? Lawyers and mediators in the same city work together all the time, so a professional relationship is not automatically a problem. What matters is that it is disclosed and that both sides are comfortable. If the mediator once represented your spouse's family business, you should hear that before the date, not halfway through the session.

• Have you represented either party or a close relative of either party?
• Do you have an ongoing relationship with either lawyer's firm?
• Is there anything about this case you think we should know before choosing you?

How they handle a session that turns hostile

Most family mediators work in caucus style, with each side in its own room, in person or on separate Zoom breakout rooms, and the mediator moving between them. Ask how this mediator runs the day, whether joint sessions are ever required, and what happens if one party becomes abusive or simply stops participating. The ethical guidelines expect a mediator to postpone, recess or end a session when a case is not appropriate for mediation or a party cannot take part meaningfully, and a good mediator will tell you how they make that call.

If there has been family violence, the questions change, and Texas law gives you specific protections. I cover those in mediating with a high-conflict ex. For most stuck cases, though, the issue is not danger but distrust, and the mediator's job is to make it possible to negotiate without being in the same room.

Fees, format and what happens if the day runs long

Ask how the fee is calculated, what it includes, when it is due, how it is split and what the cancellation policy is. The ethical guidelines say a mediator should explain all fees and expenses before the session starts and should not charge a fee based on the outcome. I go through the cost drivers in more detail in what divorce mediation costs.

Then ask about logistics. Is the session in person, on Zoom, or either? How long is it scheduled for, and will the mediator stay if the parties are close to agreement at the end of the day? Who drafts the written agreement, and is it signed before anyone leaves? The answer to that last question should be yes.

Zoom deserves its own question. Remote sessions work well for many families, particularly when the parties live in different cities or cannot be in the same building, but they depend on both sides having a private space, a reliable connection and access to their documents. Ask how the mediator handles breakout rooms, how documents are shared and signed, and what happens if someone drops off the call at a critical moment.

Red flags worth walking away from

Some warning signs show up in the first phone call. A mediator who promises an outcome, who seems to favor one side because that side called first, or who cannot explain the fee is not someone two distrustful people will come to trust. Neither is one who offers legal advice to the party on the phone; the ethical guidelines say a mediator should not give legal or other professional advice to the parties, and should encourage them to get it from their own lawyers and advisors.

• Promising a result, or a timeline for one, before reading the file
• Telling one party what they are entitled to as if acting as their lawyer
• Vague or shifting answers about fees
• No family law background for a case with children or significant property
• Unwillingness to disclose past relationships with either side
• Treating a signed written agreement as optional at the end of the day

Questions to ask yourself, not the mediator

Choosing a mediator also means being honest about your own case. Is all the financial information exchanged? Do you know what you need, as opposed to what you want to prove? Have you talked with a lawyer about the realistic range of outcomes? If you do not have counsel and the case involves children or significant assets, it is worth talking with a family lawyer such as Greg Beane before the session, because the mediator cannot advise you.

Finally, ask whether the other side will accept the mediator you prefer. In most cases the attorneys agree on a name together, and if they cannot, the court may appoint one. A mediator both sides chose is already halfway to being trusted.

It is also worth asking whether you are ready to settle at all. If you are still hoping the mediator will declare you right, no choice of mediator will help. People who do well in mediation arrive knowing that the other side will get something they would rather it did not, and that the trade is worth it for an end to the case.

Booking the session once you have your answers

In most cases the attorneys contact the mediator, agree on a date and send confidential summaries ahead of time. If you are a party without a lawyer, or a family member trying to help someone stuck in a case, you can call a mediator yourself and ask whether mediation fits. If you want to see how a session runs from start to finish, I walk through it in how mediation ends a stalled divorce or custody case.

When people call me, I answer all of the questions above in the first conversation: my background, any connection to the parties, how I run the day, what it costs and what each side should prepare. If those answers leave you comfortable, we set a date. If they do not, you will have learned what to look for in someone else.

Questions people ask me