Demystifying Divorce Series, Part 1: Mediation
Arianna Jeret walks you through a 5-part series on the most current options in modern divorce.
From the moment one spouse had told the other they want to divorce, the number one emotion at play for both individuals becomes confusion.
Yes, there may be sadness, relief, anger, and fear, but unless you are a family law attorney, you are unlikely to know what to do next, other than the hackneyed, antiquated phrase — “lawyer up.”
Despite urban legend that divorce rates are rising, they are actually on the decline in the U.S. and have been for the past two decades. In spite of that corrected misconception, divorce accounts for tremendous financial waste, mainly due to the fact that most couples have poor to little understanding of the choices available for divorcing outside of a courtroom.
There are only four basic methods through which a couple can get a divorce.
• Do-it-yourself/paralegal assisted
• Traditional courtroom-based litigation
• Collaborative divorce
Some couples end up mixing and matching as they go, but for now I will stick with providing a basic understanding of these four, including pros and cons associated with each. Today I will lay out what a basic divorce mediation process may look like.*
Mediation is a private, confidential, and cooperative dispute resolution process in which the mediator serves as a neutral 3rd party in order to facilitate communication, balance the power dynamic in the decision-reaching process and ensure both spouses have a reasonable understanding of the full range of information necessary to reach thoughtful conclusions.
Mediation is always a voluntary process. Unlike arbitration, in which the arbitrator has final-decision making power in the same way a judge would, a mediator will never have the power to decide anything for either of you.
Typically, the mediator and the spouses develop an agenda of the issues to discuss and start gathering information and documents. Throughout the process, the mediator facilitates communication so that each party can safely express what is important to them and why. The mediator assists both parties in negotiating an agreement that meets their individual and family needs, interests and values.
The overall goal is for the parties to reach an agreement that will be considered comfortable enough that both parties will honor the agreements reached without need for any future conflict resolution or court enforcement.
STEP 1 – Consultation
Most mediators will offer a consultation at no cost in order to explain the particular policies of their practice. This meeting offers an important chance for both spouses to ask questions and make sure they each feel comfortable with their choice of mediator.
STEP 2 – Individual Sessions
In many mediation practices, the first step will be for each spouse to schedule a one-on-one meeting with the mediator, during which they have the opportunity to air their concerns, grievances, hopes and goals without fear of upsetting or hurting the other. These sessions provide the mediator with critical insight into the specific issues and dynamics involved in each case, benefiting both parties in the process.
STEP 3 – Joint Sessions
Next the mediator will begin meeting with the couple in what are known as joint sessions, in which all three of them work together towards outlining the necessary agreements for their divorce. In general, there are three categories of agreements to be developed, including, but not limited to, the following:
1. Parenting plan
2. Division of assets and debts
3. Spousal support and/or child support
In some instances, a couple may have no minor children and therefore no parenting plan or child support to determine. Many couples have beloved pets whose custody and care must be taken into consideration. All of the above and more is taken into account along the way.
STEP 4 – Memorandum of Understanding/Final Judgment
Once a couple has come to terms regarding all necessary issues, they receive a memorandum of understanding (MOU) outlining these details. Each spouse has the opportunity to review the MOU for accuracy, after which it is converted into the form of a stipulated judgment or mediated settlement agreement (MSA).
When both spouses are satisfied with the terms, the judgment is submitted to the court for the judge’s approval. Once entered by the court, a mediated agreement legally binding and enforceable in the exact same way it would be if it had been developed over the more arduous process of a litigated divorce.
*Note: The process detailed above is the basic outline I have developed for my own practice. The process used by other mediators may be shaped by their own unique different philosophy and/or approach. The process detailed here should be considered a guide to understanding the basic concept of divorce mediation, rather than used as an instrument with which to measure the quality of another mediator. While the first most important factor in the success of any divorce mediation will be both spouses’ willingness to come to reasonable agreements, and an extremely close second runner-up will be both spouses’ comfort level with the mediator you hire.
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