At the first session I explain to the couple that I will give them a list of issues they will need to cover and will help them make their way through discussion of these issues. When appropriate I provide them with information that might be helpful in resolving their issues. I will also point out issues or concerns, such as the tax ramifications of their tentative agreement. Often these are things that they had not considered and might affect their agreement. I will sometimes suggest that they consult with someone else if there is an issue that is outside of my area of expertise (sophisticated tax planning for instance).
The mediation participants and I will then lay down ground rules together for what is and what is not acceptable during the mediation. I make sure that each party gets equal air time (if they want it) and my role is to help them each hear and listen to each other.
The first session varies depending on how many issues there are. There are occasions when people come in and have resolved almost all the issues. In those cases I make sure that their agreement is based on an understanding of the law and is based on complete information about the finances etc. In other words, in addition to making sure they have covered all the issues, my concern is primarily how they got to their agreement. Are either of them under any misconceptions about the law or facts?
If the parties have issues to be resolved, I start by collecting a lot of information about them and their family. At some point after the first mediation session, the couple will hopefully either have sent or brought in the financial information I have requested. This includes tax returns, bank statements, statements of accounts and a court financial statement. I will make sure each party has copies of the documents and each other's financial statements. After the fact gathering, we make a list of the outstanding issues and time permitting, we start tackling the issues.
Subsequent sessions
How long will the mediation take? I hear this question at almost every mediation. The answer- it depends! It depends on the complexity of the finances or the parenting plan or on the number of issues or on the level of emotion between the parties. Typically, mediations take between 3-5 sessions from start to finish. This could be over the span of a month or over the span of two years. Sometimes, people need to take the time. Sometimes, they need to resolve the divorce quickly. Unlike court, participants in mediation are in complete control of the schedule. I encourage the couple to take as much time as they need. A common conflict that arises is that one spouse wants to move at a much faster pace than the other. This may be the topic of our first mediation session.
At subsequent sessions, we start to address the specific issues. I usually start by addressing any burning issues that must be resolved immediately. For instance, at the start of a divorce, one party may be moving out. There are concerns about how that will happen, who will pay the bills and what the parenting plan will be. The parties may need to work on a temporary plan before they arrive at a final divorce agreement. Once the immediate issues are resolved, both parties may be in a better position to begin to deal with the larger issues.
Unless there are emergency issues, I typically start by discussing the parenting arrangements and issues pertaining to the children and then move on to property division. I emphasize to the participants that all of the issues are intertwined and that they have the freedom to change their minds and should keep open minds until they have a comprehensive agreement.
I provide participants with a list of issues that will need to be addressed in their separation agreement and encourage them to do as much as they can outside of the mediation. Again, depending on the couple, some people are able to communicate with each other and accomplish a lot outside of the mediation room. Others come to mediation because it is the only place they can communicate.
