DIVORCE MEDIATION FAQs
Is the Mediator Always an Attorney?
While most divorce mediation is done by attorneys, your mediator could also be a mental health professional or a financial professional. A mental health professional, referred to sometimes as a “coach” and sometimes as a “co-parenting counselor”, can help you create your parenting plan and facilitate your conversation even when there are no kids. The coach can help with communication issues, which enables you to participate effectively in the divorce process, and where there are kids, help you with specific co-parenting issues. A financial professional also can serve as a neutral facilitator, educating one or both of you about your finances, and helping you to craft a secure financial future.
Why Choose Divorce Mediation?
In mediation, you have the opportunity to negotiate your own settlement rather than have one imposed on you by the court, or by your attorneys. You stay in control of your own divorce or separation. Each step is by agreement, in contrast to the adversarial process in which attorneys and the law set court dates and judges make decisions with limited time and information. For parties whose shared goals are to separate with dignity or to build a solid post-separation working relationship, particularly where there are children, mediation provides a safe container for resolving their matter.
The Mediation Team: Who are the Players in a Divorce Mediation Process
Your mediator will typically be an attorney, as divorce is a complex legal process that most couples need help navigating. In addition to the mediator, however, you can build a mediation team that is tailored to your situation and your family’s needs.
You can each retain an advising attorney to help each of you to understand your legal rights and obligations, and to support and help you through the mediation.
A neutral financial professional can help you develop the information needed to comply with the legal disclosure obligations and to help the mediator understand and help sort out your financial issues. The financial professional can also help the person least familiar with their finances to understand the complexity of property and support issues. The financial professional can also do projections that map out what each party’s future financial situation will look like given different settlement options. These projections can be extraordinarily helpful in crafting thoughtful agreements. The financial neutral is also mediating, and his or her mediation skills are critical to a successful financial mediation.
Mental health professionals (“coaches”) can act as parenting mediators to help you create a parenting plan and to deal with issues that come up with the kids. Coaches can also assist couples with communication issues to help them effectively participate in mediation.
A mental health professional acting as a “child specialist” can get to know the children and be their voice in the process.
Vocational counselors, appraisers and other neutral professionals can be added to your mediation team as needed.
Developing a mediation team is at the parties’ discretion, taking into account their unique circumstances and concerns.
Timing/When to Start the Mediation
Beginning the mediation process is usually determined on a case-by-case basis. Sometimes it is best to start mediation before the actual physical separation rather than waiting, because a mediator can help separating individuals make good decisions. For example, it is usually best to have a good idea of how each person will be spending time with the children and how their cash flow will be shared before they set up separate households. Sometimes it is best to continue in couples therapy or to work with a co-parenting counselor while separating and to avoid the legal process until the couple is truly ready for it.
Some couples are already separated before they choose to begin the divorce process, may choose to work out their separation arrangements on their own and may prefer to delay the start of the mediation until they are ready to begin.
Map of the Mediation Process
Most mediation includes the consideration of these steps, in an order that makes sense in your situation:
Setting the Framework, Committing to Process, Temporary Arrangements
Review and understand the spectrum of process options.
Consider and commit to the core principles of mediation (link to that section) and share your goals and interests with one another and the mediator.
Discuss the concept of a mediation team and choose additional professionals to work with you if and as needed, and choose the mediation format that will work best for you (link to types of mediation).
Temporary arrangements and/or time-sensitive issues are discussed as soon as necessary and new arrangements established.
Gather information to assist you, your partner and your mediator in developing a creative and appropriate settlement. This includes the financial “Disclosure” required by law.
All relevant information and documentation is voluntarily and promptly shared. The factual, legal and emotional background is developed so that the issues can be identified.
Options are brainstormed for each issue.
Options are compared against the both parties’ interests and prioritized.
Settlement ideas are created, discussed and organized into settlement proposals, or “packages”.
Settlement packages are modified and refined to create resolution.
Written documentation of the agreement and required court forms are prepared signed and submitted to the court.
The mediation process is debriefed and an implementation plan is developed and carried out.
Follow Up, if Needed
Follow-up with parties to determine if any future changes are needed.
The mediator can be consulted again to negotiate, memorialize and implement the agreed upon changes.
Do I Have to Go to Court?
If you reach a complete agreement, you need never have a court hearing. Your agreement will be submitted to the court clerk with a request for your divorce. When the divorce is granted, the paperwork will be returned to you or your mediator for your records.
Does the mediator ever take sides?
An attorney mediator doesn't give advice to either of party independently, and can't act as a lawyer for either party. The mediator's goal is to help parties agree on required issues. To do that, the mediator makes a point of looking at the issues from both sides.
The mediator points out matters of concern for both parties and sometimes refer them to their advising attorneys, if they have them, for more information and/or support.
Do I need my own attorney?
Because divorce and separation involve legal questions, divorcing parties should be educated regarding their legal rights before agreeing to a settlement. Mediating parties are no exception.
The way in which a party works with his/her consulting attorney varies widely depending on that party's need. Many parties consult independent counsel before signing an agreement. For example, one party may confer with his/her independent counsel before each mediation meeting to help prepare for that meeting. Another might not consult with independent counsel until he/she is getting ready to sign an agreement. It just depends on what is most optimal for each party.
What about the law?
Most parties want to be educated as to the law. Many mediators use their prediction of what a court would do along with other standards that parties might want to consider. The law is more subjective than most people expect, and lawyers often disagree about what the law is, as do judges. The law is part of a mix of things that are relevant in mediation, along with other criteria that parties deem important. In all cases, there are some legally required steps in the process that your mediator will guide you through.
How long does mediation take?
Mediation usually takes less time than litigation. The pace is completely up to the parties, but it is common for the parties to move at different speeds. This can cause severe disagreement. Mediation typically involves a compromise between the pace of the person who is not quite ready for the divorce and that of the person who is more reconciled to the idea of the divorce. One spouse often needs more time than the other to adjust to the separation and to understand the process and the issues
Mediation goes faster when the parties promptly and thoroughly follow through with the tasks assigned, but can take longer if the issues are complex. The goal of the process is to develop an enforceable Marital Settlement Agreement; there are many unforeseen circumstances that affect the length of the process, but the parties, along with their mediator, are ultimately in control.
If I choose mediation, am I stuck with it?
Mediation is voluntary. Both parties must agree to mediate in order to begin the process, which continues only for so long as both parties and the mediator want it to. Anyone can withdraw from mediation at any time.
Will mediation work for me and what if it doesn’t?
For some couples, negotiating directly with each other, even with the help of a mediator, is not possible. That could be because of a) issues such as domestic violence or substance abuse, b) a significant imbalance of perceived personal power between the spouses - or intense emotional reactions - that make one spouse uncomfortable in a negotiation without his or her own personal representative, or c) because a spouse is simply unwilling to mediate.
Before turning to litigation, however, these couples should explore Collaborative Practice (link), or a hybrid model (link) which could still help them to honor shared goals and stay out of court.
The Mediation Process and LGBTQ Families
Mediation and Collaborative Practice are particularly helpful for Lesbian, Gay, Bisexual and Transgender and Questioning (LGBTQ) families-- with or without children-- going through dissolution because Mediation and Collaborative Practice:
· can be structured to serve your family's real needs, giving you control over where to spend your resources and energy
· can help you create solutions that work for your family
· are not “one size fits all” processes, but can be tailored to each couple’s expectations and needs rather than relying on an area of the law that is confusing and unsettled with regard to LGBTQ issues
· can take into consideration tax and other consequences that are unique to LGBTQ families