An Outline for Participants
Provided by Whig Mullins, LCSW, RN
There are many right approaches to mediation. Although I have outlined an approach which assumes a couple with children seeks marital dissolution, I use the same approach which is more simplified for couples without children and in other circumstances. Please also note that I have outlined a mediation process taking five sessions, many clients complete the mediation in fewer while some clients require more sessions.
Most clients seeking a divorce have similar issues they need to address such as the house, pensions, and college education for children. I follow the tenet that mediation can be approached in structured way to minimize mediation fees, maximize the productivity of sessions by keeping clients focused, and expedite a resolution without escalation of a conflict. This maximum also follows the slower is faster model; meaning the slower we are in the initial stages, the overall faster, comprehensive, and truly settling the mediation ends up being. I also believe the mediation process has the ability to be flexible enough to address the uniqueness of each situation by including items such as different religious requirements, various ethnic or cultural considerations of the couple, and the needs of the children.
The five sessions include an initial inquiry, first session, three middle sessions, and a final session with me to insure the mediation is what everyone is willing to live with for a long time.
The structural details look like this:
One member of a couple usually phones or emails to make an initial inquiry about mediation.
During this initial inquiry, I will try and ascertain the following:
- The names of the parties and any attorneys, plus contact information for all.
- Where the parties are in the process of resolution.
- Are there any domestic violence issues which might preclude the couple from mediating.
- The type of couple structure (such as living-together-partners, married, or civil union) and the ages of any children.
During this initial inquiry, I try to provide information regarding my background, an overview of the divorce mediation process, and a summary of the fee structure. I may explain that the mediator's role is to help the couple explore options and bring knowledge and experience to provide a context for decision-making and importantly, that ultimate decision-making authority in the process rests with the parties.
I also discuss the role of attorneys in the mediation process. Specifically, although attorneys generally do not participate in the mediation sessions, the two spouses are encouraged to consult with their separate attorneys throughout the process. They may use the services of a single attorneys to prepare their separation or divorce agreement, based on the decisions outlined in the non-binding Memorandum of Understanding prepared in mediation.
The first session serves as an introduction and overview of the mediation process. The agenda for the first session will usually encompass the following:
- Description of mediation, the mediator's role, general number of sessions and fees.
- Objectives for today and for the mediation process.
- Review of the Mediation Agreement.
- Description of fundamental issues to be addressed in the mediation process.
- Develop list of documents for clients to bring in for the next session.
There may be great anxiety about this first session. This session provides information. Clients are under no pressure to make any decision until comfortable. Many people say the most helpful part of this session is often hearing each party's objectives for the mediation and re-framing these comments so that they also hear each other. Clients often state they don't want to spend unnecessary money, don't have the stomach for court, wish to keep their conflict private, and to remain as friendly with each other as possible for the sake of the children.
The mediator will provide a list of documents needed for the next session. If anyone has a defined benefit pension plan, please let the the mediator know and request a valuation of the pension. If there is a business or professional practice, the mediator will suggest that the parties need a business valuation by a neutral business appraiser and may provide a list of professionals. Other documents that commonly requested include:
- The children's school schedules with holidays.
- Pay stubs.
- Last three years' federal tax returns.
- Last three years' W-2 Forms for each party.
- 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, if the parties cannot agree among themselves how to divide these items.
- A credit report for each party (e.g. Equifax 800-685-1111)
Except for business appraisals, that can be very time consuming, gathering all this information usually takes at least two-weeks to collect. This time lapse sometimes works to also allow both parties to process what happened in mediation as well as their emotional issues regarding their impending separation and divorce. Time to collect information, time to process the first session, and time to process emotional parts of the divorce are the reasons we separate the time between sessions. This time increment means leaving at least one, preferably two, and frequently three weeks between each session.
The focus of this session is to develop a parenting plan and data collection. The agenda for the second session will usually encompass the following:
- Sign the mediation/fee agreement.
- Develop the parenting plan and address related issues.
- Mediator will usually meet with each party alone to insure safety and commitment to the process
- Collect requested documentation.
- Provide budget worksheets for completion by the next session.
Many states require divorcing parents to file specific parenting plans. The hope is each parent will fulfill their parenting responsibilities through their agreements rather than rely on judiciary intervention. The parenting plan typically encompasses non-financial parenting issues, including:
- A specific schedule for parenting time for each party including weeknights, weekends, vacations, religious holidays, school vacations, birthdays, and special occasions, and including procedures for transferring the child.
- 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; and
- Participation in making decisions regarding the child included decisions about religious upbringing, health care, and education.
In some states, child support is based on several factors including the number of overnights each parent has with the child/children. By first developing the parenting plan, the mediator has an essential building block to assist the clients in structuring their financial settlement.
During this session, the mediator may meet with each party alone. Different mediators have different views on whether this meeting is confidential; the mediator should discuss this issue so that clients can proceed accordingly. Most clients appreciate the time in caucus, as it allows them to share the emotional details of their personal situation without worrying about their spouse's reactions.
If the case appears appropriate for spousal support because, for example, one party has been out of the work force, budgeting is a necessity. The mediator may provide budget work sheets for clients to complete, outlining current and projected expenses.
By the third session, clients often feel more comfortable with mediation. The focus of this session is on data analysis for child support and distribution of assets and liabilities. The agenda for the third 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.
Many courts require proof that parties have been provided with information regarding what child support would be according to that state's child support guidelines. Clients may choose to adjust the child support - that is also something the mediator should 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 Session Four.
There are frequent and recurring child expenses that must 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 forecast-able expenses such as 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. The mediator may also bring up the following issues:
- Frequency and/or events that should trigger a child support modification.
- Age of emancipation for the children as related to the child support obligation.
- Any religious rites of passage and how they will be funded such as Bar Mitzvahs, First Communions, and…
- The parties' desires regarding the child's college education and costs.
Personal property is the first area discussed with respect to assets and liabilities. If the parties can decide how to divide their personal property on their own such as furniture, stereo equipment, television, computer equipment, antiques, photographs, the mediator will usually stay out of that process. If they cannot, the mediator may suggest they make an inventory of household items.
One methodology for dividing other marital assets and liabilities is to prepare a three-column spreadsheet program such as Excel. The total estate would be in Column One. Columns Two would be reserved for assets and liabilities the wife is receiving, and Column Three would be reserved for assets and liabilities for husband is receiving.
As an example, if the parties have a car worth $10,000 with a $5,000 loan, a house worth $250,000 with a $125,000 mortgage, and a bank account with $130,000, the total value of their entire estate as indicated in Column One would be $260,000. If the parties decide the wife is keeping the car, the car loan, the house and the mortgage, those values go in Column One, it is clear that she is getting 50% of the total assets. Please note that this is a simple illustration and does not adjust for potential taxes, sales commissions, and closing costs that may or not be considered in the mediation process.
Budgets, spousal support, and other outstanding issues are the focus of this issue. The agenda for the fourth session usually includes:
- Review parties current and forecasted budgets.
- A discussion of what is needed if there are shortfalls including spousal support.
- Review other outstanding issues including incomes taxes, religious issues, cost of the divorce, etc...
As with the balance sheet, 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. There are many issues that influence the ease or difficulty of this task. It is usually easier if the parties are already living in separate residences and are employees rather than being self-employed. The parties' capacity for record keeping will influence the accuracy of the budget. For most clients, the goal is to capture the 20% of expenses that account for 80% of their budget.
The budgets either provide reassurance both parties will be self-sustaining and relatively comfortable or help identify shortfalls. The budgeting exercise provides information for a more rational discussion regarding spousal support, be it some type of interim support for several years, or in longer-term marriages, permanent alimony.
Outstanding issues usually addressed in this session include:
- Income taxes including exemptions for the children and filing status during the separation.
- Religious issues such as possibly religious Annulments for Catholic clients and Gets for Jewish clients.
- Whether the wife plans to change her name following the divorce.
- Social Security issues, including the ten-year rule.
- How the parties plan to pay the legal costs and fees for the divorce.
The focus of the fifth, 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
If clients have not secured legal counsel, most mediators will supply a list of mediation friendly attorneys and will encourage their clients to contact a few attorneys so that they can inquire about fees, availability and approach. Frequently, mediators will suggest that clients also review the MOU with their accountant, tax accountant, and financial planner.
The last part of this session will be spent answering questions and addressing concerns. Most clients are comfortable with the MOU, but apprehensive about moving forward. Be assured that the hardest part of the process is done - the decision-making. The attorneys will review the MOU and help 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, they are free to come back to mediation to address those issues. A revised MOU, reflecting changes made by the clients in this session is sent to clients following this session.