Preparing for Mediation

As I discussed in my last blog post, there are many advantages to successfully mediating a divorce or family law case rather than taking it to trial. Here, I present some additional questions, to give a more detailed picture of how mediation can benefit divorcing couples and parties with a family law dispute.

Q:        Where does Mediation fit in the process of getting my divorce?

In theory, when an individual desires to get a divorce, he/she will hire the best lawyer who will be able to present the client’s reasons for the divorce and a division of assets and liabilities that will be “fair” to both parties.  If there are children, the attorney will present a parenting plan which will serve the children’s best interests.

A judge in a divorce trial should also strive for fairness. Unfortunately, because most judges have far too many cases to decide, the reality is that fairness can be elusive. Our court system is overburdened and under-funded.  Judges have a lot of competing cases, and criminal cases usually have a higher priority than civil cases.  It is not that the judges are not willing to hear your case and make a decision.  They simply have to “move the calendar along”, and do the best they can do for as many litigants as possible.

The result is that the when the judge does not have the time to speak with the parties for as long as necessary to render a “fair” decision, neither side will feel that they were given the chance to tell the judge what they needed to and they did not get their “day “in court.”  In addition, both parties (and the children, if there are any) will have to live with the judge’s decision for a long time.  It will also be very expensive as well as time consuming to have the judge hear the case.

At Mediation, you will have a chance to tell the mediator about your marriage, your children and anything else that may impact on the divorce.  If you are not comfortable speaking in front of your spouse, mediation can be conducted in separate rooms.  If you prefer to have your lawyer speak to  the Mediator on your behalf, that is fine too.

Most mediators do not require attorneys to attend the mediation, however, if you can afford it that is the best practice.  Even if the Mediator is a lawyer, they are not able to give legal advice.

Q:        Is there a “Magic Formula” for a Successful Mediation?

The most important premise of mediation is that both parties are willing to participate in good faith to resolve their disputes. An experienced mediator will continue to work with the parties as long as it takes to reach a settlement.  However, there is also a question of timing for each party.  Different people take different amounts of time to come to the point where they want to settle their case.  Although it is very discouraging to participate in mediation for several hours without reaching a solution, keep in mind that sometime the parties will settle days or weeks after the mediation session.

Q:        What are the Potential Issues for Discussion in a Divorce Mediation?

Assuming that the parties have accumulated marital property during the marriage, the issue is how to divide these assets. These are my thoughts on the typical marital assets:

  • If there is a marital home, there needs to be an agreement as to who retains the property or if it is to be placed on the market for sale.  There also needs to be an agreement as to how the proceeds (if any) are to be split and in what manner.  The parties must decide who will reside in the property during the sale, and how the expenses of the property will be paid.  In the event that the house is “upside down” on the mortgage, that issue needs to be specifically stated. If the parties have agreed that they will “short sell” the house, that must be spelled out in the agreement.  I prefer to have a separate letter agreement which would not be filed in the case, but would take care of all issues related to the sale of the property.
  • Most couples have financial assets other than their residence. The parties will also need to consider all the bank accounts, money market funds, brokerage accounts, retirement accounts, 401k plans, stock options, and other employee benefits.  Each party should have copies of the latest statements for each account, copies of deeds and descriptions of any other property owned, i.e. jewelry, automobiles, boats, etc. Virtually every couple will have debts that must be divided.  Every debt must be listed in the agreement; along with how it will be paid.

Insurance is an important issue. If one party will lose their health insurance in a divorce, the cost of COBRA should be considered with the cost of replacement insurance.  If life insurance is an issue, the policy should be brought to mediation.

If legal fees and expenses are to be a consideration, the statements from all professionals should be brought to mediation.

It’s important to decide if alimony is to be paid, and if so, for how long and in what manner and under what conditions will terminate alimony.

The tax consequences of the property division, alimony and child support payments must be considered.  The mediator is not authorized to give any advice on tax matters.  The best practice is to have this information prior to going to mediation.  However, if you are unable to be certain of the tax consequences, that issue can be decided at a follow-up mediation session or jointly with the lawyers.

If the parties have minor children, the parties need to consider which parent will have primary physical custody and which parent will have secondary physical custody.  If the parties have joint physical custody, meaning that each parent will have the children exactly half of the time, many states will require that a primary physical custodian be designated.  Often, the primary parent will be the parent with the lower income.  In addition, the parties need to be clear about legal custody and who will be the tie-breaker in each area of the child’s life.  The parenting plan must be worked out with precision. It’s also crucial to know the amount of child support and how it is to be paid.  The parties also need to decide how the out-of-pocket medical and extra-curricular expenses are to be shared.

Q:        How do I (or with my Attorney) Prepare for Mediation?

Attorneys should prepare for mediation the same way that they prepare for any court appearance.  In a divorce or modification case, the parties’ financial affidavits should be current.  The issues and possible positions need to be stated.

For instance, if custody is an issue, and there is a child psychologist involved, the attorney should have an affidavit or a report from the psychologist with his/her recommendations.  Ideally, the psychologist should attend the mediation session so that the mediator can speak with the psychologist.  If that is not possible, have the psychologist available by phone.

The attorney should discuss the strengths and weaknesses of both your case and your spouses’ case. Weaknesses are risks.  Each party needs to be informed of the risk factors of their position before the mediation begins. The attorney should suggest possible solutions, both financial and non-financial, and how far each party needs to “budge” to resolve the case.

This all needs to be done prior to the mediation.  Your attorney should share his/her negotiation strategy, and you need to understand and feel comfortable with the process.  It is important to keep in mind that mediation is an art and not a science, and that your attorney’s strategies may change during the mediation, if there are other factors that are revealed during the mediation session.  If there are any reports, such as a Guardian Ad Litem [a guardian appointed to solely represent the interests of the child] or business valuation, there needs to be sufficient time to absorb the report prior to the mediation.

Do you have legal questions? We’re here to help your family. Call us at 770-333-1620.

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