Divorce Mediation: Behind the Scenes

Introduction

Mediation is a process in which a third party neutral works with two or more people to help them reach resolution on issues or conflicts that may exist between them. In divorce mediation, the mediator works with the divorcing couple to help the couple reach a resolution on the various issues in their divorce. The term "mediation" encompasses various styles of mediation ranging from transformative to directive. The varying styles often have to do with how much the mediator will interject or offer his or her own opinions to the parties. Typically, in a divorce mediation, the mediator will not offer his or her opinions and will not give advice to the participants. However, there are divorce mediators who not only offer their opinions but also actively negotiate between the parties to attempt to work out a resolution. This is sometimes called "conciliation" or "case evaluation." It is important for a couple engaging in the mediation to know which style the practitioner uses.

In the more traditional divorce mediation, the role of the mediator is to facilitate a dialogue between the parties and to insure that they have sufficient information, legal, financial etc., to make an informed decision and agreement. The mediator can provide the parties with legal information. This is distinguished from legal advice. Giving legal advice endangers the mediator's neutrality. In a typical divorce mediation, I provide a lot of legal information but cannot give my mediation clients legal advice.

Why Mediation?

Over 20 years ago, I reached the conclusion that the litigation model is not particularly well suited to dealing with one of the most difficult and traumatic times for people. During a divorce, people are often dealing with every major aspect of their life. They  are dealing with their children, property, support, health insurance, retirement and more. The problem however is that there are many people vying for the judge's time and energy. In turn the judge has very little time to hear and fully understand the litigant's situation. The pace and timing of the clients' divorce is guided by the court's schedule and judge's availability. This often leads to long delays. There is also very little predictability when going to court. How a case turns out may very well depend on who is the judge, who the lawyers are, the particular relationship between the lawyers and a host of other factors which are outside of the client's control.

Secondly, litigating a divorce, particularly for clients who are middle class or low income, is extremely expensive. Most lawyers require significant retainers to commence the case. One trip to court can use up a significant chunk of the retainer. Typically, clients appear in court with many other litigants and spend several hours waiting to see the judge. Mediation is much more efficient and much less expensive.

Litigation encourages more animosity and less communication. The contested divorce will undoubtedly involve attempts to discredit the other party. Particularly when there are children involved, the litigation system can have a devastating impact on the children as a result of the winner take all attitude. Unfortunately there is rarely a winner. Often, everyone loses, including the children.

Mediation encourages communication, cooperation and listening. Mediation focuses on brainstorming of ideas for mutual gain rather than destruction of the other person. Mediation highlights the fact that the two participants will remain connected for the rest of their lives through their children and thus must find a way to continue to work with each other in an effective and respectful manner.

Unlike litigation, mediations occur behind closed doors and are not open for the public to see. What follows is a behind the scenes look at the mediation process from start to finish.

First Call

Typically, one of the parties calls my office asking about the mediation process. During this call I will answer many of the basic questions about mediation and will make sure that there is no conflict of interest. In order to maintain neutrality and the appearance of neutrality, it is essential to make sure that there are no prior business, social or client relationships between the parties and the mediator which might affect the mediator’s neutrality.  If there has been a prior relationship the parties and I will have to determine if proceeding with the mediation would be appropriate.

Assuming both parties are interested, I set up an initial free consultation. I make sure that the party calling for the appointment calls his or her partner and I have them confirm the first appointment. These calls are usually fairly short and limited to obtaining identifying information.

First Meeting

At the first meeting, I explain the process and ask some additional identifying information such as date of marriage, date of separation, names and ages of children etc. I also usually try to get some idea of what sort of issues the couple has and what sort of agreements they have already reached. I give the participants an opportunity to ask questions about the process. This usually takes between 15 to 30 minutes. I give the couple the option of starting the mediation right away or going home and thinking about it. If they need time to discuss it alone, I offer to leave the room.

If the parties want to start right away, I go over the mediation fee agreement with them and go over the packet of information which I hand them at the start of the mediation. If they choose to start, I begin charging them after they sign the mediation agreement. The fee agreement explains how much I charge, how they will be billed and reiterates the mediation process.

Free Informational Packet

If the participants choose to start their mediation session on another day, I send them home with a packet which includes information about divorce and mediation. The packet includes homework which I ask them to prepare before the next session. The homework includes a court financial statement and answering questions about finances, insurances, agreements they have reached and issues they are having trouble with. If they have children I also include information about the parent education class they will be required to attend before their divorce hearing.

First mediation 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.

The Mediation Process

As the mediator, there a number of things going on in my head and on a number of levels. I am trying to assess the participants and the dynamics. I look at body language, tone of voice and their general demeanor at the mediation. It is my job to determine if there is a power imbalance and if so to address it. It is also my job to make sure that each party has the same basic level of understanding and knowledge. If not, I suggest ways that this can happen. Sometimes I suggest experts or outside people that one of the participants can consult to get up to speed.

On another level, I am always assessing my neutrality. If I suggest that one party consult with an outside expert, will that be seen by the other party as favoring that party? Almost anything I do can be taken as biased. In fact, I often tell the couple that I will inevitably be biased. It is unrealistic to think I would not be. What I ask them to do is to inform me if at any time they feel that I am not being neutral.

On another level, I am simply a traffic cop. I need to keep the participants focused and on task. It is my job to redirect the conversation when things get out of hand or become too tangential. At various times, I check in with the couple to make sure that they are comfortable with what is happening in the mediation.

On yet another level I am a problem solver. Ideally, the resolution of disputes and ideas for resolution will come from the parties. There are times however, when I will make some suggestions for possible scenarios for outcomes. Once again, whenever I make suggestions I always have to be careful and make sure that the parties understand that I am not pushing a particular agenda or resolution. This would undoubtedly affect the appearance of my neutrality. There are times however when I see parties struggling to find a solution and I have one in mind because of experience in dealing with a similar situation in the past. In that situation, I will make a suggestion of one more option to consider.

The Agreement

Once the parties have reached an agreement on most or all of the issues in their divorce, I will draft a proposed agreement. Depending on the complexity of the agreement and the level of conflict, there may be some revisions of the agreement at subsequent meetings. When there is a complete agreement I will draft a final divorce agreement. Parties can file this agreement with the court and ask the court to have the agreement incorporated into the judgment of the court. I encourage clients to have the agreement reviewed by independent attorneys for each of them before signing the agreement.

Lawyers

Even though many mediation participants come to mediation with the intention of not seeing an attorney, I strongly encourage each client to do so. As mediator I do not provide the participants with legal advice, although, I do provide plenty of legal information. A consulting lawyer will be able to review their proposed agreement and advise them about their individual rights and whether in that lawyer's opinion the agreement is fair or not. After consulting with a lawyer, a client may come back to mediation and discuss proposed changes. While difficult for the other party, ultimately, this is good for the process.

Wrapping up

Once the parties have reached an agreement, if the parties are not using attorneys, I send the clients a packet which includes all the court forms and financial documents they will need to file with the court and a very specific instruction manual about the court process and how to file the divorce. If necessary I will meet with the parties or speak with them on the telephone to answer questions about the court process.

Conclusion

Mediation is a cheaper, saner and more efficient approach to resolving divorces. Having mediated for over 10 years and having conducted hundreds of successful mediations, I believe that divorce mediation is a logical and cost-efficient alternative for the vast majority of couples going through a divorce. If you would like more information about mediation or would like a free information packet, please call 413-256-1575.