Private Divorce Mediation

Private divorce mediation has grown in popularity since it first became widely available in the 1970s. Today, it is used by many couples who understand that a good divorce is almost as valuable as a good marriage.

This section covers some issues specific to private divorce mediation.

1. Getting Started

To get your case into divorce mediation, you’ll have to convince your spouse to give it a try.

a. When Should You Propose Mediation?

The best time to propose mediati V to your spouse is after both of you have accepted that your marriage is over (until then mediation will not be productive) but before either of you has filed for divorce. Once you file court papers and get lawyers involved, it can be much more difficult to reach an agreement to mediate. However, you do not need to be living apart in order to mediate; many divorcing couples, for example, start mediation while still living together but planning to separate (perhaps because they are waiting for their house to sell).

If divorce papers have already been filed in your case, you can still propose mediation. In the early stages of a contested divorce proceeding, positions have usually not hardened, as often occurs later when the very nature of the adversary process propels at least one side to go for the jugular (and by so doing, convinces the other to respond in kind).

You can even try mediation if you and your spouse have not decided to divorce, but only to separate temporarily. You could, for example, agree to a trial separation and mediate how to divide household bills and parenting responsibilities during the period you are living apart.

b. Proposing Mediation to Your Spouse

Rather than trying to “sell” your spouse on mediation, it’s usually best to just provide some information about the process and the advantages of mediation, and suggest that you both consider it as an option.

• “We can both save money on legal fees and avoid a possibly nasty public court fight.”

• “Mediation offers us a cooperative, nonadversarial approach to problem-solving—if we both agree to a settlement, nothing can be imposed on us.”

• “In mediation we can both think through what we really want rather than engaging in a legal tug of war.”

• “Mediation will benefit our children by reducing conflict between us now and in the future.”

• “Our discussions will be confidential, so we can avoid public disclosure of our personal problems.”

• “In mediation, we can complete our agreements more quickly, so we can move ahead with our lives.”

• “Neither of us will be risking anything legally because we can each have our own lawyers review the agreement before we sign anything.”

• “If we don’t go to private mediation we’ll be required to go to the court-sponsored program anyway [if you and your spouse have minor children and if your state has a mandatory court-sponsored program], so we might as well go private and take advantage of choosing our own mediator, discussing all issues, scheduling the sessions at our convenience, etc.”

You can also offer to call several divorce mediators in your area and have them send printed material to you and your spouse, then get back in touch later to see if you can both agree on a mediator.

DEALING WITH A RELUCTANT SPOUSE

If you have proposed mediation but your spouse is reluctant to participate, try the following:

• Have materials sent about mediation. If you have not already done so, have a local divorce mediator or mediation service send printed materials to your spouse. Some state and national organizations that promote use of mediation also will send materials upon request.

• Have your spouse talk to a mediator. Suggest that your spouse have a private phone conversation with one of the mediators you would be willing to use. Most mediators would be willing to accept a call from your spouse to answer questions about mediation.

• Offer to pay for the first session. Many mediators will offer an initial session of one-half to one hour during which the mediator can assess whether mediation is appropriate for a couple and the couple can consider whether they want to go ahead with the mediation. To encourage your spouse to participate, you can offer to pay the full fee for this session.

2. Choosing a Mediator

There are many thousands of mediators in the United States today who specialize in divorce and family cases. The majority are in solo practice; most of the rest work at community mediation centers or in small group practices. The easiest way to find a list of divorce mediators is to look in the telephone directory under “mediation” or “divorce.” Other resources in your community who may be able to give you the names of divorce mediators include:

• the staff of your community mediation center

• matrimonial lawyers

• the staff at a family services office (some are connected to a local court; others are independent, nonprofit agencies)

• clergy

• therapists

• employee assistance personnel at large corporations

• friends and relatives who have used a mediator.

Once you get a list of possible names, you should check the person out. The mediator you select should not only be professionally compe­tent, but should also have a style and approach to mediation that is broadly compatible with your own. For example, if you are a practical, down-to-earth person, you probably don’t want a mediator who speaks what you see as New Age psychobabble. On the other hand, if you feel that your inability to maximize your potential as human beings is precisely what has been wrong with your marriage, you may find that a mediator who focuses only on practical issues to be jarring.

THE MEDIATION CONTRACT

Your mediator will probably require you and your spouse each to sign a contract for mediation services.

The contract will probably set out the mediator's fees and schedule of payments, and recite the goals of mediation, your right to have an attorney, rules of confidentiality, disclosure of financial information, and rules about participation by third parties. It will express the willingness of both spouses to make a good faith effort to work toward a settlement, and may commit you not to pursue litigation, arbitration, or other remedies during the course of the mediation.

If the mediator sends you a contract that obligates you to more than one session of mediation, call the mediator and explain that, while you are willing to pay for the first session up front, you prefer to wait until its conclusion before making a longer-term commitment. This will give you time during the first session to decide if you really want to use this mediator.

When you find a mediator you think you would like to work with, there are a number of ways to evaluate his or her suitability for your case. For example, ask for names of lawyers who have reviewed agree­ments the mediator has drafted for other couples; the lawyers can give you an opinion on the mediator’s technical competence. You can also ask the mediator for references from former clients. The mediator will not give you another client’s name, but may be willing to take your name and have a former client call you.

QUESTIONS FOR A PROSPECTIVE DIVORCE MEDIATOR

Here are some topics you will probably want to discuss with a mediator you are considering:

• fees

• training and accreditation

• experience

• willingness to intervene to protect a weaker party or block an unfair agreement

• willingness to provide referrals to lawyers and other professionals

• use of private caucuses (some divorce mediators use private caucuses; others don't)

• desire or willingness to meet with your children

• form of the final agreement (some mediators prepare a memorandum detailing your agreement, which must then be translated into a legal agreement by one of your lawyers; other mediators will draft a final, legally binding agreement).

3. Inside the Mediation Session

Private divorce mediation tends to be much slower than court-sponsored mediation and cover more issues. Indeed, it’s different enough from court-sponsored mediation and from mediation generally, that it’s worth going through the process step by step.

• STAGE ONE: Intake and Commitment. The mediator will start the first session by reviewing the procedures, rules, and goals of mediation. This is the time to ask questions, and to decide whether you can trust and feel comfortable with this mediator. If you and your spouse have not previously signed a contract with the mediator, you will likely be asked to sign it now. If you want, you can have your lawyer or law coach review it and then bring it to the next session either signed or with specific questions for the mediator.

• STAGE TWO: Financial Disclosure and Fact-Finding. At the end of your first session, the mediator may give you financial worksheets asking you to list your assets, such as bank accounts, stocks, bonds, real estate, partnerships, pension funds, and business interests. (If your media­tion is limited to parenting issues, you may not have to make such detailed financial disclosures.) In some states, the information re­quested on the forms is dictated by state law, and each spouse will later need to affirm to the court that complete disclosure of assets was made. You may also be asked to turn over to each other payroll records, checkbooks, pension plan summaries, and three years' worth of past federal and state tax returns. You will probably spend the second session (and perhaps longer) analyzing these records together.

QIf substantial assets are involved, you may want to have a lawyer or an accountant review your spouse's financial records to interpret financial data and be sure everything has been disclosed. If you believe your spouse is hiding assets, a lawyer can issue a subpoena for additional records. But consult with the mediator before asking a lawyer to do this; the mediator will want to know about any actions that are likely to make the process more adversarial.

• STAGE THREE: Identifying the Issues. After the financial cards have been laid on the table, the mediator will invite discussion of the issues. This will likely occur late in the second or early in the third session. On some issues—who will have primary custody of the children, for example—you may already be in agreement. But as to others—for example, the details of visitation and amount of child support—you may be far apart. Some property issues may also emerge that are going to need a lot of negotiation: Should the cost of one spouse's professional degree be considered marital property, some of which is owed to the nonprofessional spouse? Who should get the home computer? Once all the issues are identified, the mediator may help the couple decide the order in which they should be discussed.

• STAGE FOUR: Negotiations. For the next several sessions, you and your spouse will address—in order—the issues you’ve identified. As you cover each issue, the mediator will help you think of ways to resolve it that you may not have thought of on your own. Often, due to anger and emotional fatigue, couples are unable to see options for settling disputes beyond a few obvious choices. The mediator will help you take a fresh look at the issues in order to think of all options for settlement. If your mediator uses caucusing, you are most likely to caucus during the negotiation stage.

• STAGE FIVE: Agreement, Drafting the Memo, Lawyer Review, Closing. When negotiations have concluded because an agreement has been reached, the mediator will draft the proposed agreement, often referred to as a “memorandum of understanding.” The mediator will review each part with you in session to make sure the wording accurately reflects your agreement. At this point, mediators who include children in the process may invite you to have your older children come in for part of a session so the mediator can explain the process you have gone through and the decisions that have been made.

You and your spouse will each receive a copy of the draft memoran­dum for your lawyers or other advisers to review, if you wish. Most mediators will hold one session in reserve in case you need to come back to discuss questions raised during this review. Typically, one or both parties will take the final memorandum to a lawyer to be drafted into appropriate legal form (sometimes called a “separation agreement” or “marital settlement agreement”) and presented to the court for approval and issuance of a legal divorce decree. In some cases, the mediator will draft the court papers for you directly. ■