DIVORCE MEDIATION ON THE RISE
THE MEDIATION PROCESS
Divorce mediation is an informal and flexible process. Mediation may begin before or after a spouse has filed for divorce; the parties control when to start mediation. The mediator’s role is to guide the parties toward their own resolution after full disclosure.
Mediation often begins with joint sessions used to set the ground rules and an agenda. The mediator helps both sides define the issues clearly. During the process, the mediator may caucus with each spouse individually to help the parties move closer to a resolution.
Once all the issues have been addressed, the divorce mediator will draft a memorandum of understanding (MOU) covering all the issues and resolutions. The MOU is given to the attorneys representing each of the parties for their review, and one of the attorneys will then draft the settlement agreement.
If the complaint has been filed, the attorneys will request a divorce hearing. On the date of the hearing, your divorce will be finalized.
TOPICS COVERED BY DIVORCE MEDIATOR
Your mediator will help you work out a parenting plan, child support and in some cases spousal support. The mediator will show you how the Child Support Guidelines apply to your situation. The divorce mediator will help you better understand the cost of living apart based on your own current income.
This will greatly assist in determining both the amount and duration of financial support the children, and/or perhaps one of parties may need and/or be entitled. A mediator will also help you make a plan for all your future parenting decisions including; but not limited to extra-curricular activities, holiday schedule, birthdays, funding college education, emancipation, and tax deductions.
The mediator will help divide your marital assets such as the equity in the marital home, bank accounts, family business, retirement accounts including pensions and 401ks, cars, furniture, and jewlery. The mediator will also assist in dividing up the marital debt. Some assets may require an expert evaluation.
For example, an expert should be obtained to determine the precise market value of a business or home. Mediation is conducted so that both of the parties can contribute equally to decisions, after full disclosure, and there should not be any winners or losers. There is no topic out of reach in mediation. Mediation covers all the same issues attorneys negotiate in divorce litigation.
RISE OF DIVORCE MEDIATION
The rise in divorce mediation is attributable to two major factors. First, mediation is much more cost effective than litigation. Litigation is expensive, and the outcome in almost all cases is the same, which is settlement. Fees are moderate and on an hourly basis. No retainer is used in mediation as it is instead a ‘pay as you go’ system.
For example, Joe and Mary file for divorce and both have attorneys negotiating their agreement at $300.00 per hour. After 15 hours of negotiations they have both paid each of their attorneys $4,500.00; the marital pot has been reduced by $9,000.00.
In the next scenerio, Joe and Mary file for divorce and both have attorneys, but rather than have their attorneys negotiate their agreement they instead use a mediator to reach a settlement. The mediator charges $300.00 per hour and after 15 hours of negotiating their agreement they each pay $2,250.00.
It is also highly likely that it takes less time to negotiate an agreement because both parties have made a conscious decision in a cost effective approach to reduce their overall fees and protect their naturally vested interest concerning their finances.
Additionally, significant amounts can be saved by using a mediator based on direct communications. The parties using the mediation process will actually be sitting before a mediator discussing issues and concerns.
In the alternative, the parties using their attorneys for such negotiations will have virtually all of their basic communications take place through their attorneys. This process will likely entail each of the parties first having phone and/or other electronic communications with their respective counselors; and those concerns than being reduced to written letters that ultimately results in a costly deluge of such back and forth communications.
Nevertheless, it is recommended that both parties always retain their own divorce attorneys so that each divorce attorney can advise their client concerning the law and what is in their best interest.
A good divorce mediator will discuss the law but will not weigh in on the individuals best interest. Second, mediation gives the parties control over the outcome of their divorce. A mutual agreement is reached in mediation by both agreeing to solutions. Direct communication through mediation helps to limit hostility enabling and encouraging the parties to more openly discuss things productively.
Where children are involved, all mediation discussions are tempered by the fact that both parties are the parents of their children and you will have a continuing relationship as parents long after you have ended the husband and wife relationship.
Although most forms of separation negotiations are intended to take notice of the best interests of the children, these often get lost. In mediation these remain the central and key issue. It is no wonder divorce mediation has been on the rise. It offers a less expensive, less hostile, more open and ultimately productive means of divorce.