Divorce Mediation
What is mediation? Mediation is a process in which the husband and wife work with a neutral third party, called a mediator, who facilitates an agreement on child support, alimony, equitable distribution and other issues involved in their divorce. The mediation process provides the divorcing couple with an opportunity to negotiate their own settlement.
The goal of mediation is a divorce accomplishes three objectives:
- Legal Divorce - ends the marriage within a reasonable time of the decision to divorce, without legal fees and with a minimum of acrimony and fighting.
- Economic Divorce - separates the marital partners into two distinct economic units so that assets and income are fairly distributed and economic sacrifice equally shared.
- Emotional Divorce - allows both partners to mourn the end of the marriage, leaving the former partners capable of behaving decently and respectfully toward each other, able to cooperate as parents, and able to embark on new relationships.
When these goals are met, all family members are able to move on to satisfying and productive lives. Mediation is much more likely than litigation to produce a divorce that achieves these goals.
When is mediation an appropriate alternative to litigation? Mediation may be an appropriate alternative to litigation when both parties seek to resolve their divorce issues by agreement and want to avoid a trial or other adversarial court proceedings. Mediation may not be appropriate if there has been domestic violence in the family, if one party feels controlled by or fearful of the other party, or if either party is unwilling to provide full disclosure of their income, assets and debts.
How long does mediation take? Mediation usually takes between three and ten sessions, depending on the complexity of the issues and the needs of the parties. If the parties cooperate in providing discovery and are able to schedule appointments weekly, the entire divorce may be completed in less than three months. A litigated divorce averages about one year but may take as long as three years (or more in some counties) if a trial is necessary.
What is the role of the mediator? The mediator is a neutral person, preferably an attorney or mental health professional, who has completed formal training in mediation. The mediator will manage the negotiations between the divorcing couple, create a safe environment in which to interact with each other, help to create options and solutions that will benefit the divorcing couple. 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 custody and parenting time issues, distribution of assets and liabilities, child and spousal support, insurance, income tax and other decisions needed to restructure their family into two units.
The mediator is not there to make decisions for the couple but to show the couple how to reach their own solutions. Most importantly, although the mediator does not have the power to change the past, he or she does have the ability to help shape the future in a way that is satisfactory to both spouses.
Does an attorney-mediator represent both of the parties during the divorce? The mediator is a neutral facilitator and does not represent either party. Each party should obtain independent legal advice from an attorney of his or her choice and should consult with that attorney regularly during the mediation process. Neither party should engage in mediation without knowing his or her legal rights.
Doesn't the retention of a mediator and two attorneys increase the cost of the divorce? A litigated divorce is an expensive process. Even a simple court proceeding often requires hours of preparation and waiting time, with additional follow-up work afterwards. The attorney's time in making court appearances, as well as the time he or she spends on discovery, depositions, motions and telephone calls can be very costly. Mediation, on the other hand, is a more amicable process which takes fewer attorney hours and results in substantially lower total fees, even when the expense of the mediator is included.
What happens at the end of the mediation process? With the advice of the attorneys and the help of the mediator, the divorcing couple will reach agreement on the issues. The mediator will then draft a Memorandum of Understanding setting forth the agreement. One of the attorneys will incorporate the agreement into a Property Settlement Agreement to be signed by both parties. One of the attorneys will be designated to file a Complaint for Divorce and, shortly thereafter, a court date can be scheduled for the final hearing.
What if the couple cannot agree on all the issues? Any issues which are not resolved through mediation can be decided by the court or negotiated by the attorneys.
Can the parties mediate disagreements that arise after the divorce? It is inevitable that there may be disagreements concerning the children or other issues, even after the divorce. Mediation is always an alternative for resolving these family disputes, whenever they arise.
What topics are covered in the typical mediation? Mediation is usually scheduled in one to two hour sessions, each of which covers a specific topic. The amount of time required and the order in which the topics are addressed can be affected by such factors as the length of the parties' marriage and the complexity of the issues involved in the divorce. For example, if the couple does not have minor children, a parental session is unnecessary. The sessions, their content, and their usual order may be described as follows:
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 that he or she can make an intelligent decision about the suitability of mediation.
Mediation Session #1 - Introduction and Overview.
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. The agenda for the first session will usually encompass the following:
- Description of mediation, mediator's role, number of sessions and fees.
- Parties' objectives for the mediation.
- Review of sample mediation retainer agreement by which the divorcing couple retains the mediator for their divorce mediation.
- Grounds for divorce/separation, and a summary of the legal process.
- Issues that must be addressed immediately.
- Description of issues to be addressed in the mediation process.
- Develop a list of documents for clients to bring to the next session.
Before the next joint session, two sessions are held, one private session with each member of the divorcing couple separately.
Mediation Sessions #2 and #3 - Private Sessions
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.
Toward the end of each caucus, the mediator will provide a list of documents needed for the next session, such as pay stubs, last year's W-2 forms for each party, the most recent federal tax return, etc.
Mediation Session #4 - Developing the Parenting Plan
The focus of this joint session is on developing the parenting plan and on data collection. The agenda for this joint session will usually encompass the following:
- Develop the parenting plan and address related issues.
- Collect requested documentation.
- Provide budget worksheets for completion by the next session.
Mediation Session #5 - Budgets and Spousal Support
The focus of the fifth session is on budgets and spousal support. The agenda for the session will usually encompass the following:
- Review parties' current and forecasted budgets.
- Discuss needs if there are shortfalls, including spousal support.
- Review other outstanding issues including religious issues, costs, etc.
The fifth session is pivotal, and requires that clients be ready to make key financial decisions. During the session, the mediator will review the current and forecasted budgets with the clients. 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.
Mediation Session #6 - Child Support
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.
- Collect budgeting information.
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 - that is also something the mediator will work through with clients. 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.
Mediation Session #7 - The Distribution of Assets and Liabilities
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. Thereafter, the mediator may go through numerous alternatives for dividing the marital assets and liabilities, and may look for ways to balance the division through vehicles such as Qualified Domestic Relations Orders that allow the transfer of part of a pension or deferred savings plan to the other party. Once the mediator has gathered the remaining information, he or she will be in a position to prepare a draft version of the Memorandum of Understanding.
Mediation Session #8 - Memorandum of Understanding
The focus of the eighth, and usually the last, session is on reviewing the draft Memorandum of Understanding ("MOU") 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. The final MOU will be mailed to clients shortly after the session.
If clients have not secured legal counsel, the mediator will supply a list of mediation friendly attorneys. The clients' attorneys will review the MOU and help the clients implement the agreement. The mediator will assure them that if any conflicts arise during the filing process, during the divorce, or after the divorce, clients are free to come back to mediation to address those issues.
