So, you are in the process of a divorce. You know you do not want to go to court. You have heard horror stories about the costs of divorce (many of which are so true). What do you do next?
Enter the world of divorce mediation. Here come the questions. What is mediation? Are there different types of mediation? Which type is best for me? How do we pick a mediator? What should we be concerned about? How long will it take? How much will it cost?
I will answer these questions, one by one, and hopefully, this education will help you learn how to make it through the divorce process with the least amount of pain.
What is divorce mediation? When you think about mediation, think about self-determination. The process of mediation is where two people engage in a non-court process with the goal of resolving all disputes and entering into a written agreement to that effect. Mediation can be conducted between the two participants and mediator, but there are different pairings available, as well. Many people choose to bring their attorneys to mediation, as well. In some mediations, consultants and experts are brought in to assist with financial issues, custody issues and a host of other issues.
Are there different types of mediation? Yes. The question is what are they and is one type better or worse than another. There is the traditional model of a mediator, who is usually an attorney or retired judge-sometimes a mental health professional or clergy-meeting with both of you. There is an alternative model that some people hear about on radio or TV called collaborative mediation. It is a team approach to mediation, bringing in attorneys, divorce coaches, financial consultants, all working towards a shared goal of a resolution. It is a nice model, but it has fallen flat on its face because (1) it is expensive, and (2) if it does not resolve, none of the attorneys or consultants can participate in your divorce. That, of course, is just plain bizarre and a waste of money.
What type of mediator is best for me? There are other models of mediation, as well, but more importantly, different mediators have different styles. You both have to choose a mediator with a style that works the best for both of you. That can be a bit daunting to anyone, of course. Some mediators have a very open-ended style and will let you both control the conversation. Usually, that is not a good style for divorce mediation, because one or both of you could miss talking about an essential issue. I prefer utilizing a problem-solving model of divorce mediation. I will listen to what each of the party’s goals are, and I will make sure that all of the relevant topics are discussed, so that nothing is overlooked. We will then go topic by topic, and for each topic, I will let the parties control the conversation. They will often ask me questions, which I will readily answer. The key is to share all information equally between the parties and to ensure the mediation process is completely transparent and that each party is satisfied with the disclosure of the other.
How do we pick a mediator? That is the best question of the day. As I said, mediators can be clergy, mental health therapists, attorneys or judges. The vast majority of divorce mediators are experienced divorce attorneys. Why? That’s an easy one. We know the law, and we work with people everyday going through divorce. Equally important, we also know the proper consultants to bring into the mediation process. If there is an issue with valuing a business, we know how to engage a business valuation consultant. The same is true for real property, expensive personal property, and so forth. We know the reputable counselors to help both of you and your family. In short, the highly experienced divorce attorney is often your best resource in divorce.
There are usually issues in divorce neither of you are typically aware of. Let’s take, for example, the FAFSA specialist. This is a highly trained professional who can help find you college money for your children. Believe me, college tuition can often be one of the largest financial issues in your financial reality, and even though there is no legal responsibility in Maryland for parents to pay for college for their children, many choose to do so. If you are going through a divorce, it is usually disastrous to fill out the FAFSA form on your own without getting advice from a FAFSA specialist.
What should we be concerned with? Everything, of course. Here is the short list of essential topics to cover in divorce mediation, but it is clearly not a complete list, since every divorce is different:
1. Legal and physical custody
2. Visitation and parenting plans and schedules
3. Child support
4. Health insurance
5. Dependency deductions on income tax returns
6. Special education and medical needs
1. Real property
2. Tangible personal property (vehicles, jewelry, furniture, etc.)
3. Intangible personal property (bank accounts, investments, stocks, etc.)
4. Retirement accounts (pensions, 401k accounts, IRAs, unfunded plans, etc.)
5. Business assets and valuations
6. Health insurance
7. Life insurance
I typically work from a list of more than fifty categories of potential issues for parties to discuss. I let them identify the issues important to them, and then I will help them fill out the rest.
Let me share a brief story to illustrate the importance of disclosure in the mediation process. Often, when a spouse works for a major corporation or a governmental entity, there are various categories of retirement assets that your spouse may not be aware of. Occasionally, a less then scrupulous spouse will try to hide those assets from the other spouse. That is why you need both your own attorney and an experienced divorce mediator to minimize the chances of their not being a full identification of all assets.
How long does mediation take? That varies greatly, case by case. I have mediated cases that resolve within an hours, and I have met with parties for fifty or more hours, working through serious complex issues. You can be assured that whatever period of time mediation takes, it is a solution that allows for both of you to determine your own destiny. Mediation can be creative, and sometimes, creativity takes time.
How much does mediation cost? Again, this varies by mediator and by the amount of time mediation takes. Most prominent divorce attorneys who mediate charge their normal hourly fee for mediation, which typically ranges from $300-400 per hour. It is a pennies on the dollar approach to resolving a case that could take hundreds of hours to prepare for a contest trial.
So, hopefully now you know more than you did before reading this article. The bottom line is simple and clear: mediating is a better approach for most divorcing couples because it saves time and money, and both of you control your destiny as opposed to a judge determining it for each of you.
One final word. Often, issues of domestic violence, threats or unbalanced bargaining power drive people away from mediating. Experienced divorce attorney mediators have a great way to combat this issue, which is to screen the case for domestic violence and then place the appropriate safeties in place, which could mean keeping the parties separated during the mediation process.