Divorce and Family Mediation
Please note that "Divorce" often refers to a disputed divorce. When the parties have agreed to the terms for ending their marriage, it may be called "Dissolution of Marriage." In the following material, I am using both terms interchangeably since some parties who are divorcing come to mediation to resolve those issues they can and thereby save money and avoid increased emotional stress. Most couples using mediation are seeking to reach full agreement on ending their marriage and will file for a "Dissolution."
While mediation is widely used in many areas of dispute resolution, it is best known for its remarkable effectiveness in divorce and domestic relations disputes. Many think that they and their spouse (or ex-spouse in post decree cases) are too angry or argumentative to meet in mediation. Actually, mediation usually works quite well even for couples who canít seem to talk without fighting. Often, their ability to communicate and even their relationship improves through the mediation process.
Traditional (litigated) divorce involves going to attorneys, filing in court and following a competitive process including expensive actions of discovery such as interrogatives, depositions, expert witnesses and escalating demands. Even after all the money and emotional energy is spent on discovery, only 5 - 7% of all divorces actually go to court. Most are settled out of court - often just minutes before going before the judge - while waiting in what is often called "Heartbreak Hallway," the waiting areas outside the courtroom.
Mediation can bypass the entire discovery process. In mediation, the parties meet with their mediator together. (While attorneys are welcome to attend, it is rare in my experience.) Instead, with the mediatorís help, they talk through the many issues that are included in the final parenting plan and financial settlement. The mediator leads them through the process in a totally neutral way and often meets with each party to help them clarify their needs, goals and negotiation strategy.
Sometimes there are strong disagreements that take hard work and creative thinking to solve. The mediator may suggest what others have done in the same situation to give parties new ideas to choose from or modify to meet their own needs. In the end, most parties develop a plan that works.
Many couples come to Mediated Solutions without having retained attorneys. In general, this does not seem to be a problem. We do encourage parties to develop a relationship with an attorney who can advise them on issues of law, or counsel them on negotiating strategy, but we donít require it.
While divorce mediation can begin at any moment in the divorce process (including post-decree) I usually advise parties to begin their mediation prior to filing for divorce or dissolution with the court. We can then develop temporary agreements to cover both parenting and immediate financial needs such as budgeting, child and spousal support and the process of separating their finances. Once the temporary agreements are developed, I sometimes recommend a hiatus in the mediation process to give them time to "practice" the arrangements they have negotiated. Often one or both parties realize that what seemed to make sense during negotiations doesnít actually work for them in real life. We then renegotiate the agreements to be more effective for both parties.
Once the parties have determined that the parenting plan and financial arrangements they have negotiated are effective (usually 4-8 weeks) we start meeting again to create the final parenting plan and financial settlement based on the finely tuned temporary agreements. The parties can then have attorneys review the agreements and prepare and file the dissolution with the court as an ďAgreed Entry,Ē or the parties can prepare and make the filing themselves (Pro Se). While we recognize that many parties do not want to engage attorneys, we none-the-less encourage all parties to have attorneys review their arrangements before filing with the court.
The entire mediation process can take just a few two hour long sessions, or as many as twelve or fourteen, depending on the ability of the parties to work together productively and the complexity of each individual case. My shortest cases have resolved all issues in just one session. Three to five sessions are more common to develop parenting plans and an additional two or three sessions are most common to negotiate financial settlements. So, for a typical case, 5 to 8 sessions total is required. While I have had several cases run twelve to fourteen sessions, that is relatively rare.
At the end of the process, each party receives an original signed copy of the "Memorandum of Agreements" which details all the agreements included in the parenting plan and the financial settlement. Parties can give copies of the Memorandum to their attorneys and/or use it as the basis for filing with the court for dissolution.