Articles
A Step-by-Step Summary of the Divorce Mediation Process
By Donald D. Vanarelli, Esq.
Approved as a Mediator in Family and Divorce Cases Under the New Jersey Court Rules
Introduction
Divorce mediation must be approached in a structured manner so as to minimize mediation fees, maximize the productivity of sessions, and expedite a fair resolution before the conflict is allowed to escalate. In a typical divorce mediation, I meet with clients from three to ten 90-minute sessions over a one to four month time frame. However, I have had clients who literally take years to work through the issues, and also clients who have completed the mediation process over two weekends. In fact, the process can take a greater or lesser number of sessions and time than described below, depending on the complexity of the issues, the availability of documentation and third-party appraisals, preparedness of the parties, and the party's readiness to proceed.
The mediator's role in any divorce mediation is to help the couple explore options and their consequences, and bring knowledge and experience that provides a context for decision-making. Mediation is guided by the concept of self-determination-decision-making authority in the mediation process rests with the divorcing couple. The mediator helps the separating couple address the custody and parenting time issues, distribution of assets and liabilities, child and spousal support amounts, insurance, income tax and other decisions needed to restructure their family into two units.
At the end of the mediation process, the mediator prepares a Memorandum of Understanding (MOU) that summarizes the agreements reached. The MOU is not signed by the divorcing parties, but is used as the basis for the Property Settlement Agreement used in the divorce action. Although attorneys generally do not participate in the mediation sessions, the two spouses are advised to have their attorneys review the MOU. They may also use the services of an attorney or attorneys to prepare their separation or divorce agreement, based on the decisions in the memorandum.
The success rate for divorce mediation, which I define as the parties coming to agreement, is high. From my experience, 90% of separating clients who voluntarily come to mediation complete the process. Also, there are much fewer post-divorce court applications to modify the property award in mediated divorces than in litigated divorces.
Scheduling the First Mediation Session
A prospective client may phone or e-mail to either learn more about mediation or to make an appointment. The mediator tries to provide sufficient information to the prospective client so he or she can make an intelligent decision about the suitability of mediation while at the same time not developing a relationship with the client.
Mediation Session #1
The first session serves as an introduction and overview of the mediation process. Because both spouses attend the mediation, it is known as a joint session. This session is usually highly emotionally charged. There may be great anxiety about the session, anger between the parties, and apprehension about the mediator and the mediation process. The most helpful information obtained during this session is each of the party's objectives for the mediation. The mediator may provide general legal information, but will not provide legal advice specific to the divorcing couple.
Mediation Sessions #2 and #3
In these sessions, the mediator meets separately with each member of the divorcing couple. Equal time is provided to each client, and all information provided to the mediator in the separate session, called a "caucus", is confidential and not shared with the other spouse. The time in caucus allows each client to share the emotional details of their personal situation without worrying about their spouse's reaction. Any acts of domestic violence and child abuse are also discussed.
Towards the end of each caucus, the mediator will provide a list of documents needed for the next session. If either party has a defined benefit pension plan, the mediator will provide forms so that they can request a valuation of the pensions. The mediator will provide budget work sheets for clients to complete, outlining current and projected expenses. Other documents which are usually requested include:
- The children's school schedules with holidays.
- Pay stubs.
- Last year's W-2 Forms for each party (summarizing annual earnings).
- Most recent federal tax return.
- Copies of all bank, brokerage, and 401(k)/403(b) statements.
- Most recent mortgage statement showing outstanding loan balances.
- A summary of all insurance policies and coverage.
- A market assessment of real estate if property values are in dispute.
- A list of household items to be divided.
- A credit report for each party.
Mediation Session #4
The focus of this joint session is on developing the parenting plan and on data collection. The parenting plan typically encompasses non-financial parenting issues, including:
- The type of custody chosen and reasons for selecting it (usually either sole custody to one parent with parenting time to the other, joint legal custody with one parent having primary residential care, or joint physical custody).
- A specific schedule for parenting time for each party including weeknights, weekends, vacations, religious holidays, school vacations, birthdays, and special occasions.
- Access to various records including educational and medical records.
- Provisions or restrictions on domestic or international travel.
- The impact if there is a contemplated change of residence by a parent.
- Participation in making decisions regarding the child including decisions about religious upbringing, health care and education.
Mediation Session #5
The focus of this session is on budgets and spousal support. The agenda for the session will usually encompass the following:
- Review parties' current and forecasted budgets.
- Discuss what is needed if there are shortfalls, including spousal support.
- Review other outstanding issues including religious issues, cost of divorce, etc.
By the fifth session, most clients feel comfortable with the mediation process. This session will be pivotal, and requires that clients be ready to make key financial decisions. However, because the clients have provided the necessary documentation that has allowed the mediator to conduct data analysis, they will now be in a position to make decisions based on full disclosure.
The mediator will take data provided by the clients and create a spreadsheet with the parties' marital budget, and the projected budgets for each of the parties after the separation and divorce. During the session, the mediator will review the current and forecasted budgets with the clients, and try and help them jog their memories for expenditures and well as income sources we may have missed. The budgets either provide reassurance that both parties will be self-sustaining and relatively comfortable, or help identify shortfalls. The budgeting exercise provides for a more rational discussion regarding spousal support, whether it is interim support, support for a number of years, or, in longer-term marriages, permanent alimony. Because establishing both the amount and the term of spousal support is highly subjective, it is advisable that the clients seek advice from counsel, and even get a second opinion, if they are not comfortable.
Mediation Session #6
The focus of this joint session is on data analysis for child support. The agenda for the sixth session will usually encompass the following:
- Review child support based on child support guidelines.
- Discuss other financial issues related to the children.
- Review inventory of assets and liabilities.
- Decide how to divide assets and liabilities.
New Jersey has court-approved child support guidelines and formulas for couples with various income levels. The mediator will perform the calculations necessary to determine the child support award applicable in the clients' case. Clients may choose to adjust the amount of child support. Additionally, if spousal support is also warranted, child support may be revised upward or downward depending on the amount of spousal support agreed to in prior sessions.
There are frequent and recurring child expenses that must also be addressed during this session including:
- Work-related childcare.
- Child's share of health insurance premiums.
- Out-of-pocket health care expenses of the child such as for orthodontia.
- Other extraordinary but foreseeable expenses such at SAT preparation classes.
Some child-related costs cannot be anticipated at the time of the divorce such as fees for summer camps or karate lessons. Parents often choose to share these costs, or pay them in percentage to their incomes.
Mediation Session #7
The focus of this joint session is on the distribution of assets and liabilities and other outstanding issues. When considering the division of assets and liabilities, the parties usually first discuss personal property. If the parties can decide how to divide their personal property (such as furniture, stereo equipment, television, computer equipment, etc.), the mediator will usually stay out of that process. If they cannot, the mediator may suggest they make an inventory of household items, and then take turns picking the items they desire. If one person ends up with significantly less, they can ask for reimbursement from the other party.
The parties have provided documentation including copies of bank statements, business valuations, brokerage statements, and pension statements. During the mediation session, the mediator may go through numerous alternatives on how they could divide up the marital assets and liabilities. Additional issues usually addressed in this session include:
- Income taxes including exemptions for the children.
- Religious issues such as possible religious annulments for Catholic clients, and Gets for Jewish clients.
- Whether the wife plans to change her name following the divorce.
- Social Security issues.
- How the parties plan to pay the legal costs and fees for the divorce.
Once he has gathered the remaining information, the mediator can write a draft version of the Memorandum of Understanding.
Mediation Session #8
The focus of the eighth, and usually the last, session is on reviewing the Draft Memorandum of Understanding and amending/correcting it.
The Draft MOU summarizes everything the parties have agreed to in the mediation process. The MOU is not intended as a legal document and will remain unsigned by the parties. It serves the purpose of putting in writing the goals, intentions and attitudes of the couple, as well as their parenting and financial agreements. The MOU will also describe the marital standard of living. The mediator will provide each client with a draft of the MOU, and then review it in as great detail as is needed, to ensure that the document reflects the intentions of the clients. 
For additional information regarding the Divorce Mediation Process, call us at 908-232-7400 or click here to contact us online.
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