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"Why
would you give up your right to make
the decisions that affect your life,
and allow a
judge to make them for you?"
Why
Mediation Works...
- A neutral party
(the mediator), without taking sides, helps the two of you come to agreements
that both of you feel are fair.
- The two of you
are in control of the process. You are working together, in the
same room, on a common goal. You set the pace. You are given
the time to think things through.
- You can select
a mediator that best fits the style that the two of you feel comfortable
with.
- Costs are kept
down. The two of you are sharing one mediator, instead of negotiating
through two attorneys. Questions can get answered immediately, instead
of having attorneys filter the questions and answers.
- You have the opportunity
to be truly heard by the other. You can explain your needs, and
your constraints.
- It is the nature
of the process that the level of stress is greatly reduced. The emotional
content that led to the divorce is set aside (for the moment).
- The final decisions
are yours, not a judge's and not an attorney's. You are much more
willing to live up to an agreement that you make, instead of an agreement
that is made for you.
Mediation in a nutshell...
I meet with both
of you, in my office. In special circumstances, I might meet with each
of you, separately. My sessions tend to last 2 hours, but they could be
shorter or longer. We usually meet once per week until all decisions are
completed, but you set the pace. The majority of my clients who have children
need between three and fivesessions. The mediator is helping you identify
and decide issues related to (1) dividing your assets and liabilities,
(2) parenting your children, (3) child support, and (4) spousal support.
The result of mediation is a document called a Memorandum of Understanding,
usually around 10 pages long, detailing the decisions that you have made.
I encourage my clients to share that document with their attorneys, who
will review it with you and write up the final draft of your Separation
Agreement. (You are not required to use attorneys for preparing the final
Separation Agreement; you may write that document yourselves.)
The role of the attorneys
usually is narrowed to consulting, reviewing, and managing the paperwork.
The majority of the work - the decision-making - is done with your mediator.
So, paying one mediator instead of two attorneys cuts your costs in half.
And, because the mediation process is much more efficient, your costs may
be much less than half. More importantly, it is the nature of the mediation
process that the arguments, the fights, the threats, the game playing come
to an immediate halt. The goal: To help the two of you move on with your
lives in a peaceful and financially-secure manner.
Mediation Styles...
Mediators have different
styles and approaches. Generally, they are of three groups:
- Facilitative: The mediator structures a process to assist the
parties in reaching a mutually agreeable resolution. The mediator asks
questions; validates and normalizes parties' points of view; searches for
interests underneath the positions taken by parties; and assists the parties
in finding and analyzing options for resolution. The facilitative mediator
does not make recommendations to the parties, give his or her own advice
or opinion as to the outcome of the case, or predict what a court would
do in the case. The mediator is in charge of the process, while the parties
are in charge of the outcome.
- Evaluative: An evaluative mediator assists the parties in reaching
resolution by pointing out the weaknesses of their cases, and predicting
what a judge or jury would be likely to do. An evaluative mediator might
make formal or informal recommendations to the parties as to the outcome
of the issues. Evaluative mediators are concerned with the legal rights
of the parties more than needs and interests, and evaluate based on legal
concepts of fairness. They help the parties and attorneys evaluate their
legal position and the costs vs. the benefits of pursuing a legal resolution
rather than settling in mediation.
- Transformative: This style of mediation works towards transforming
the relationship between the parties, helping them better understand one
another: their needs, interests, values and points of view. If successful,
the parties are then enabled to work together in making their own decisions.
Art's approach:
For divorce mediations, I blend the three styles. I am primarily "facilitative"
with a touch of "evaluative" and "transformative."
I explain the concepts behind the issues to be decided, present various
viewpoints that might be considered, point out any proposals that seem
to be unbalanced or out of the norm. However, after explaining unbalanced
or unusual proposals, I allow the two parties to agree on whatever they
feel is fair - by their individual definitions of fairness.
About Divorce, Litigation,
Mediation...
Divorce
is stressful. As you separate from your spouse, you will experience
an upheaval of the way-of-life the two of you have built together. It will
take a great emotional toll, regardless of whether you are the one choosing
to leave or the one being left. Your emotions may be everywhere: anger,
suspicion, relief, joy ... fear of your spouse, fear of an unknown future.
The divorce process
itself is sure to intensify your feelings. Often, the process creates more
conflict than the initial reasons for the divorce. And the financial expense
of the divorce process can amount to a significant percentage of your financial
resources - unless you manage the process well.
The two of you are
going to have to decide: (1) how the assets and liabilities will be
divided; (2) who will provide what care for the children - physically,
emotionally, financially; (3) whether spousal support is needed.
You will want to
minimize conflict as much as possible, so that you can get on with your
life. And you don’t want to spend a fortune getting there.
Litigation,
the standard method of divorce, involves two opposing attorneys and a judge.
It is your lawyer’s duty to try to "win" for you. But is
divorce a matter of win/lose? Or is it a matter of determining what is
best for each of you?
If one of you is
intent on inflicting financial pain on the other, to make up for emotional
loss, then your financial negotiations cannot be performed rationally until
the wounded party feels that the scales are in balance - by that person's
definition of "balance." Of course, the other person feels
a need to fight back. Unfortunately, making decisions based on emotions
rather than well-founded reasoning always incurs large attorney fees.
If you let your lawyers
manage the process, the communication chain often involves six links: each
question flows from you through the lawyers to your spouse, and the answer
makes the return trip. There are three drawbacks to this: (1) Your original
intentions and the response can be misinterpreted. (2) There are long time-delays.
(3) Each of the six steps usually involves an attorney billing.
When each of you
enters the divorce process with the intention of "winning," and
you use your attorneys to "fight your battles" for you, antagonism
grows - and so does the bill.
Mediation
is a process of discussion and negotiation. With the guidance of the trained
mediator, you and your spouse will work out the terms of your divorce agreement.
Mediation works,
even if one of you enters it feeling "weaker" than the other
in negotiating. Feelings of guilt or hopelessness might sway you to give
away more than you should; not understanding financial issues might make
you feel inadequate in negotiations. It is the mediator’s responsibility
to level the playing field, to give each of you the strength to represent
yourself, to help you make informed decisions, to provide a place where
you will feel safe to take care of yourself.
The mediator will
provide alternative, and often creative, solutions to areas of disagreement.
You will be told what can normally be expected in specific situations,
but you will have the freedom to come up with solutions that are best for
the two of you.
Yes, you will use
attorneys, also. There are some issues that can be answered only by an
attorney. And, you will want to have an attorney available, for clarifying
any legal doubts that you might have, to review the entire process, and
to manage the divorce in the courts. However, your time with your attorney
(and, thus, the cost) can be kept to a minimum.
Of course, mediation
is not for everyone. There are situations in which a mediator should not
be used, and in these cases it is important that you use attorneys who
are experienced in handling your particular circumstances:
- when one spouse
refuses to show all financial information
- when one spouse
is intent on hurting the other
- when one spouse
has been abused and fears retaliation from the other
The Mediation
Process: You and your spouse sit with the mediator, who asks questions
that (a) bring out all of the issues that need to be decided, and (b) lead
to resolutions that are equitable and mutually acceptable. Each weekly
session lasts for approximately 2 hours. Between three and five sessions
are usually needed to complete the process. If no children are involved,
it will take fewer sessions.
The mediator must
have knowledge of the three facets that are needed to come to a successful
agreement: financial, legal, and emotional. So, it should not matter
whether you pick a financial consultant, a lawyer, a therapist, or any
other practitioner to mediate your divorce. The mediator helps balance
the give-and-take aspect of negotiation, to ensure an equitable division
of assets and responsibilities. When one of you asks for too much or too
little, the mediator points out the pitfalls of such decisions. But, in
the end, the decisions are made by the two of you.
Upon completion of
the process, the mediator writes a "Memorandum of Understanding"
(MOU)detailing the terms of your divorce. Each of you presents this to
your attorney. The attorneys then finalize the documents to produce a binding
Separation Agreement. Note, however, that you are not required to use attorneys;
you may write the final Separation Agreement yourselves (based on the MOU).
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