Issues Common to Court-Sponsored and Private Mediation

Court-sponsored and private mediation are similar in many ways, but there are also significant differences. This section covers issues that are common to both types of divorce mediation.

0Yo∪ can't have it both ways. In theory, you could mediate custody issues in a court-sponsored program and economic issues with a private mediator, but splitting up the issues this way will probably make it difficult to work out an agreement that recognizes the close relation­ship between custody and economics. For example, in a comprehensive mediation, you could agree that the parent who will have custody of the children most of the time will receive the family home in the property division. If you want to mediate both types of issues, it’s best to address them together at one mediation. Because most court-sponsored pro­grams do not handle economic issues, this means that you will probably have to use private mediation.

1. The Role of the Mediator

The goal of any divorce mediator is to help a couple reach a fair and workable agreement on the various issues involved in ending their marriage, including a plan to care for the couple’s minor children, if any. The mediator does not function as a lawyer-advocate or a therapist (even if the mediator has a professional background in law or counseling), and usually has no authority to impose a decision.

0In a few states, a mediator can recommend a solution to the judge. Although mediators have no power to impose a decision, some states allow a mediator to influence a judge’s decision in a divorce case.

Divorce mediators do not try to help a couple reconcile. Helping a couple deal with hurt or anger, and hashing out problems in the mar­riage, are relevant to divorce mediation only to the extent that they help the couple deal with current and future issues. Indeed, mediators generally will not consider a couple ready for mediation unless both spouses have accepted that the marriage is really over. (Despite this strong bias against acting as a marriage counselor, mediators report that some mediating couples reconcile, perhaps because mediation helps them communicate in a nonadversarial manner—and drives home the consequences (economic and otherwise) of divorce.)

2. Role of Lawyers

Although the mediator may inform you about the law, you should not rely on the mediator to evaluate the legal consequences of a particular approach to settlement or to recommend a decision or course of action for you. If you need that kind of advice, you should do your own research or get help from a lawyer. (See Chapter 13 for more information on both.)

As a practical matter, not everyone will want, or even need, to retain a consulting lawyer. For example, if you and your spouse have no minor children and no significant property to divide up, or if your income is such that child support will be at the minimum level required by state law and there will be no spousal support, it doesn't make sense to pay a hefty hourly fee for a lawyer's advice during the mediation. On the other hand, if you own a thriving business, have major stock and real estate assets, and are looking at a potentially big claim for spousal support from your stay-at-home spouse, you really should get good legal advice. (The lawyer should be advising or representing just you—not both of you—because you and your spouse will not have the same legal interests or rights.)

If you decide to pay for legal advice, here are some suggestions on working with a lawyer during each phase of the mediation process:

• Before mediation: Consult with a lawyer or law coach to:

✓ learn about your legal rights—or be referred to good self-help resources

✓ learn how a judge might decide your case, and

✓ plan your negotiation strategy.

• During mediation: If you already understand the legal rules that apply to your dispute, you probably won’t need a lawyer present at your mediation. But you may want to consult with your lawyer between sessions to review developments and get advice. If your mediation may last only one session (as in many court-sponsored mediation programs), try to arrange for your lawyer to be available by phone during the session so you can consult right away, if necessary.

There may be some situations when you do want your lawyer to accompany you to a mediation session. For example, you may expect that a legal issue you don’t fully understand will arise during the session and, under the court-sponsored program, a second session will not be available. Or, you may be intimidated by your spouse and want your lawyer there to bolster your confidence and to speak for you.

• After mediation: Have your lawyer review the agreement before you sign it to be sure that your legal rights are protected.

3. Preparing for Divorce Mediation

The issues you discuss and the agreement you reach (if any) in divorce mediation will have an important effect on you and your family for many years. It’s worth taking the time necessary to prepare yourself. Also, if you carefully consider the range of realistic options available for the major issues involved in your case and what you want a final plan to look like, you will be have an easier time negotiating with your spouse.

In some ways, preparing for divorce mediation is just like preparing for any other mediation. You should:

• Carefully read the mediation rules and any other materials about the mediation program. Look for information about the expected length of the session(s), what to bring with you, what issues you will be allowed to discuss, and what will happen if you don’t reach a settlement.

• Research the law. Because the state bears some responsibility for the welfare of children, the law plays a greater role in custody and visita­tion cases than in mediation generally.

• Gather evidence. If you have documents that show the value of various items of marital property or pertain to the care of your children, bring them to the mediation.

NOLO RESOURCES ON FAMILY LAW

Nolo publishes several books on custody, divorce, and other family law topics. These books will give you a great starting point for your legal research—and for your mediation planning.

• Using Divorce Mediation, by Katherine E. Stoner. This book offers readers a step-by-step guide to divorce mediation, including many helpful tips and strategies for a successful mediation.

• Divorce & Money, by Violet Woodhouse with Dale Fetherling. Figure out how to assess your goals, divide property and debts, and negoti­ate a fair settlement, with the help of this book.

• Child Custody: Building Parenting Agreements That Work, by Mimi Lyster. This book shows separating parents how to build a compre­hensive custody agreement that will stand the test of time.

• Living Together: A Legal Guide for Unmarried Couples, by Toni Ihara, Ralph Warner, & Frederick Hertz. Provides information on the legal rights of unmarried couples.

• A Legal Guide for Lesbian & Gay Couples, by Hayden Curry, Denis Clifford, & Frederick Hertz. Provides information on the legal rights of same-sex couples.

In addition to this general preparation, you’ll need to identify your mediation goals.

a. Identify Your Personal Goals

What do you want to do with the next five or ten years of your life? Keep your current job, find a new one in the same field, go back to school, or begin a new career? What are your goals in terms of your relationship with your children? Spend more day-to-day time with them? Or spend more time with them on weekends and vacations?

Consider how your goals for the foreseeable future might be sup­ported by various possible outcomes in mediation.

b. Identify Your Children's Needs

If you have minor children, the court is obligated to make sure that your custody and visitation decisions are in the best interests of your chil­dren. So, to prepare for your mediation, it’s a good idea to try sincerely to identify your children’s best interests. You’ll know you’re on the right track if you can acknowledge that your best interests and those of your children may sometimes differ. Start by thinking about what your children most need now. Consider financial support, parental supervi­sion, opportunities for study, recreation, access to siblings and friends, and relationships with other adults such as teachers, grandparents, other relatives, and family friends.

c. Assess Your Financial Needs

In order to negotiate effectively in mediation, you will need to under­stand what your financial needs will be after the divorce. For example, how much will it cost you each month both to pursue your own goals and to support your children? Do you and your ex-spouse earn or own enough to make these goals realistic?

A good way to begin thinking about financial issues is to try to list all post-divorce living expenses you can reasonably anticipate. Major categories of monthly expenses are likely to include:

• residence payments (rent or mortgage, taxes, insurance, and mainte­nance)

• groceries and household supplies

• utilities

• telephone

• laundry and cleaning

• clothing

• medical and dental costs (insurance and out-of-pocket payments)

• other insurance (life, disability, and long-term care)

• child care

• education

• entertainment (including restaurants, movies, and so on)

• transportation and auto expenses (lease payments, insurance, gas, repairs, and maintenance)

• installment payments (credit cards and loans), and

• incidentals.

If your mediation will cover financial issues like child support and/ or spousal support, bring this financial information to the mediation. If you are going to a private mediator and you will be discussing financial issues, your mediator will probably ask you and your spouse to prepare detailed financial disclosure forms (usually as “homework” in advance of the second or third mediation session). If you suspect your spouse may be inclined to overlook or conceal assets, try quietly, before your media­tion begins, to make a list of what you know to be your own and your spouse’s assets.

WILL SPOUSAL SUPPORT BE AWARDED?

In most states, a court decides whether to award spousal support based on factors such as each spouse's needs and earning capabilities, the age, health, and standard of living of each spouse, and the length of the marriage. For example, if a couple was in a very short marriage and both have decent jobs with similar earnings, a court probably will award little or no support to either spouse. But if the marriage has lasted 15 years and one spouse has been out of the job market for a decade or more while raising the children, a court is more likely to award spousal support.

0Make sure you are informed. If you have reason to believe your spouse is hiding a pile of assets (stocks, bonds, cash, gold, ownership of real estate), you may want to take some legal action that will allow you to subpoena financial records (from banks and stock brokerages, for example) and question your spouse under oath. Talk to a lawyer if you find yourself in this situation.

d. Focus on the Future

Mediation is not about which spouse was right or wrong in a particular dispute or who said what to whom and who was hurt the most. Instead, it’s about creating a plan that will allow you and your spouse to dissolve your marriage and, if applicable, continue to parent your children together effectively.

To get the most out of mediation, you need to prepare yourself to use it as a problem-solving process, not as a place to fight old battles. If you can approach mediation looking toward the future, then you will be well prepared to get the most out of the process.

EIGHT TIPS FOR CONDUCTING YOURSELF IN MEDIATION

Mediators are human beings and may be influenced in their work by the impressions they get of you and your spouse. For example, if the media­tor comes to see one spouse as more reasonable and reliable than the other, she may try to move the other spouse’s position in that direction. Given the choice, you want to be the one the mediator sees as more reasonable. If you are mediating in a court-sponsored program and the mediator has power to make a recommendation regarding child custody and visitation, this becomes all the more important.

Here are some tips that will help you stay on the right track:

1. Remember that your mediator is not a judge. Expecting your mediator to function as a judge, therapist, lawyer, or marriage counselor just wastes time. The mediator’s only job is to help you and your spouse reach an agreement.

2. Don’t demonize your spouse. Don’t try to prove what a bad person your spouse is and what a great person you are. Deciding who is good and who is bad is not the mediator’s job.

3. Don’t play the victim. Showing how poorly you have been treated, even if it’s true, may appear self-serving and the mediator may not take you seriously. In any case, it’s usually not relevant to what will happen in the future.

4. Focus on the future. If your spouse persists in bringing up his or her version of the past, simply say that while you don’t necessarily agree, you want to focus on the future and look for a solution that will be good for your children and acceptable to both you and your spouse.

5. Keep in mind the best interests of your children. The law says decisions about custody are to be based on the best interests of the child. Develop your arguments around this standard and the mediator will be more likely to help you achieve your goals.

6. Show how you relate to your children. Show what your relationship has been with the child in the past with clear examples (projects, homework, trips, meals, hobbies you share, bedtime rituals, regular time together).

7. Show you can be a good coparent. Emphasize that you understand that a child needs the support and love of both parents (even imperfect ones) and that you can cooperate with your spouse in coparenting your child.

8. Raise whatever forward-looking issues are important to you. Raise important issues—even if they are not legal ones—involving children, your extended family, and future relations with your spouse, while you have the opportunity.

Keep your head while all about you are losing theirs. It can be tough to keep your cool in divorce mediation, especially if your spouse is speaking in anger. Your best approach in this situation is to stay calm. Just politely repeat that you are there to work out what’s best for your children in the future. You can count on the mediator’s support in helping to calm down your spouse.

4. Who May Attend Mediation?

Usually, just the spouses attend mediation sessions, but you and your spouse can invite others to participate if you both believe that their presence would be helpful (and the mediator agrees). For example, when you are negotiating visitation plans, you may want to include one or more of the children’s grandparents or other relatives. You can also invite people who have been involved in an important way in your marriage and family life, such as relatives or friends living in your home. (Your new partner may be welcomed, but not if his or her presence would make it more difficult for your spouse to participate effectively in the mediation.)

Or you may simply want to bring someone with you for emotional support, to assist in describing your family situation, or to help you consider settlement options as they arise during the session. (This would be more typical in court-sponsored mediation, when you may have only one session to get everything on the table and decided.) You also have the right to bring a lawyer to mediation.

Some mediators like to devote part of a session to meeting with children (usually only those who are at least eight or nine years old). This occurs after the parents have completed negotiating their parenting plan. The mediator, meeting alone with the children, will review the plan, ask for the children’s reaction, and assure them their parents love them and have worked hard to create a good plan for the future. If the children have questions or problems with the plan, the mediator will review these with the parents. Other mediators prefer not to involve children. Whether your children will be able to participate will depend in part on their ages and on the rules followed by the particular court- sponsored program or private mediator.

If you have children, relatives, or other friends whom you would like to bring to the mediation, check the mediation brochure, or printed rules, or call the mediation office or private mediator to see if this will be allowed.

5. Confidentiality

As a general rule, your mediator will be required by law and/or court rules to keep confidential everything that is said during mediation. This means that if you do not reach a settlement and your case ends up in court, you cannot call the mediator as a witness to tell the judge what your spouse said during mediation. There are some important excep­tions to this general rule, however:

• In many states, mediators are required to report reasonable suspi­cions of child neglect or abuse. This means, for example, that if you tell the mediator—even in private caucus—that you or your spouse has physically abused your children, the mediator may be required by law to report it to a social service agency for investigation.

• Mediators may have a duty to report anyone who, in the mediator’s opinion, makes a specific and believable threat against another person. For example, you might say to the mediator in caucus, “I don’t care what happens at this mediation, because next Saturday night I’m going to deal with this problem once and for all.” If the mediator concludes that this is a threat, he may be legally required to report it to the police or other authority.

0 Don't make threats—even in jest. Every year, people who work in

areas relating to child custody and support, including judges, lawyers, social workers, and occasionally even mediators, are attacked and sometimes killed. As a result, everyone in this field is extremely sensitive to threatening behavior. Just as you wouldn’t tell a joke about bombing an airplane while walking through an airport metal detector, you shouldn’t make remarks as part of your mediation session that could possibly be interpreted as threats to the mediator, your spouse, or anyone else.

C.