In Mediation– The Basics we provided a high level overview of mediation, mediators, the role of lawyers and other essential information. In this article will go into more detail about the pros and cons of mediation, the process and most importantly, how to be successful.
Get The Best Odds of Success with Preparation
Remember, above all, the key to mediation is preparation. Now that you understand that the role of a mediator isn’t to tell you what to do, it becomes clear that in order for you and your spouse to be able to discuss settlement concepts, it is essential to do some meaningful advance preparation.
1. Before You Begin Mediation: Organize
Mediation, as with all of the settlement pathways, is based on the facts of your relationship, your family, your financial situation, and your needs. Nothing can be substantively discussed until this is documented – even if you don’t have all the details, you will save a lot of time and money if you start by getting organized.
We specifically designed dtour.life to assist with this often complicated and difficult process. This will take a bit of time, but it will be invaluable data to edit, update and run reports as you move through the process. It will also be essential to have after the final settlement is reached.
- Create a case profile that details the family/relationship background
- Input the information that you have about your past, current and future assets and debts
- Input the information that you have about your family’s living expenses
2. Consult with a Lawyer and/or a Financial Expert
Take these completed reports to a lawyer for legal advice as to various settlement scenarios. It is very important to learn how family law applies to your set of facts so that you know the baseline of what the court in your county would do with this set of financial facts.
If your financials are at all complex, often it isn’t just the application of law that is important, but understanding the character of an asset or debt, its underlying value, tax implications, cash flow strategies to maintain the assets and lifestyle and other divorce-related nuances. It can be tremendously helpful, and often advisable, to meet with a financial expert who is trained in divorce finance. Often the focus is on legal advice, but we cannot emphasize enough how critical good divorce financial advice is.
3. Explore Preliminary Settlement Concepts
With your lawyer and/or financial expert, develop various high level proposal concepts – (just concepts since a lot of flexibility is still important!) so that you have ideas as to how various settlement scenarios, with which you are comfortable, might look. This exercise will transform the mediation experience from one of discomfort and fear to one of empowerment since you are already familiar with various concepts about settlement.
What Exactly is the Mediation Process?
Mediation Session 1
Every mediator has their own methodology and style, so this is simply a “typical overview. In the first session (usually 2 hours) let the Mediator guide you through a conversation to begin to identify your family goals, assess financials, and perhaps suggest various solutions for distribution. You will also begin to discuss income and expense and any support obligations that might result. This can be helpful to immediately establish the areas of agreement so that the specific points of disagreement can then be addressed.
Do not agree to anything major, or something that comes at you as a surprise, in the first session so that you have time to step away and consider all that has been discussed. Afterwards, if there are concepts or ideas for which you need additional legal advice or input, consult with an attorney.
Mediation Session 2-5+
The complexity of the case and the dynamic between you and your spouse will determine how many additional sessions are required to come to a full agreement over all financial matters.
Final Settlement Agreement
Once there is agreement, someone will draft a binding legal settlement agreement (sometimes referred to as a marital settlement agreement, or MSA) that identifies all of the points to which you agreed. Often the mediator will draft this, or will issue a Memo of Understanding that can then be turned into an agreement by the lawyers.
In either scenario, both spouses should have a lawyer review the final settlement to be sure that it is an accurate representation of the agreement and that you both fully understand the terms.
There are various ways in which mediation can be adjusted to be even more effective for some situations, should your mediator agree.
If you and your spouse are committed to compromise and mediation, and yet it is still difficult to be in the same room to discuss such sensitive matters, often a mediator will set up a “caucus” situation. This means you are in one room, your spouse is in another room, and the mediator goes back and forth. This can be quite effective, but the trade-off is that it will take more time and be more expensive.
Often, one spouse is more financially experienced than the other. This can put the nonfinancial spouse at a disadvantage in these detailed discussions. A lack of understanding of financials makes it is difficult for that spouse to participate and make decisions and this often delays difficult negotiations, so often a financial neutral -- or a financial advocate -- will be involved in the mediation to assist.
While initially this idea can feel threatening to the financial spouse, what we find is that the neutral or advocate understands the financial issues, helps explain and guide the nonfinancial spouse to make informed decisions which helps the mediation be far more effective.
Often a more complex situation will require that both lawyers are present. This preserves the creative environment of a mediated settlement and it can often assist the parties in a more comprehensive approach to a global settlement in a single session. A session with both lawyers present is often longer and of course more expensive, but the trade off is to have immediate legal analysis, to be more efficient, and to increase odds of settling without going to court.
What is the Bottom Line?
Mediation equals compromise. Mediation requires compromise. You must be willing to compromise. Your spouse must be willing to compromise. If one party is a bully, or worse, incapable of compromise, then mediation could very likely be a waste of time and money. You cannot mediate with a bully. You cannot mediate with an ineffective mediator who isn’t able to elevate the conversation when it is in risk.
Mediation means working together in the same room as your spouse. It is very difficult to sit in the same room (or down the hall) from your spouse and have to deal with the painful and difficult issues surrounding the splitting up of a life. That is why we so strongly recommend adequate preparation and legal/financial advice so that you are familiar with settlement terms that are both acceptable to you and legally defensible.
Mediation is a choice. Remember, the mediator has no legal power or authority; they cannot tell you what to do or encourage you to accept a deal. However, if you are prepared, choose your professionals well and have sound legal advice, the mediator can help guide an equitable settlement for both parties.
A final point to note -- no one walks out of a mediation feeling like they “won.” This is not a competition; it is a venue to make the tough financial decisions before each spouse moves forward. Mediation is about communication. It can allow two spouses to talk about what is important to them, and sometimes this open communication can make the post-divorce and where applicable, co-parenting process just a little bit easier.
Please check back later for our forthcoming article, “Custody Mediation – The Basics”
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