Before couples decide the best course of action when separating, it is helpful to know the essential steps of the mediation process. Divorce mediation is a popular process used by couples who want to avoid a costly and lengthy divorce trial. With the guidance of a mediator, you have control over what the outcomes of your divorce are for you and your family. While mediation may look different for everyone, there are 8 steps to know and take to have the most successful mediation.
1. Planning & Understanding
Now that your interest in mediation has piqued, it's important to ensure that both you and your partner understand the process and discuss what you are hoping to achieve. If you are not in a place where you feel you can have a conversation on mediation, it can be helpful to consult with a couple’s counselor. Before moving forward with the process, discuss your concerns with one another, research more about the ins-and-outs of mediation, and begin browsing for a mediator.
2. Finding a Mediator
Mediators’ approaches come in all shapes and sizes, so you’ll want to someone that best fits your needs. The three most common mediation styles are evaluative, facilitative, and transformative. While many mediators combine all three, each differs in the way they approach each person's needs, how they interact with you, and the overall goal of mediation. When searching for the right fit, most mediators will be happy to spend a few minutes speaking with you, at no charge, to explain the process and answer any questions you may have. Here are some questions you can ask a mediator to see if they are the right fit for you:
- What is your style of mediation?
- What does your availability look like? How far in advance do you schedule meetings?
- Will you be preparing, filing, and processing our divorce paperwork for us or will we have to figure that out on our own?
- Do you take a retainer upfront and bill against that or do you charge a flat fee? If so, how much? And what is your hourly rate?
- What type of mediation training or certification program have you completed?
Mediators should be equipped to navigate interpersonal dynamics with ease so that you both feel heard and validated on all issues. When you chose a mediator, be transparent and open about what you are looking for so that they share what they can offer you. Your mediator is on both of your teams and will be looking out for all of your best interests.
3. Preparing Information
Prior to or directly after your first meeting, your mediator will ask for a series of documents to assist you in dividing property and debts, child support, and any other finance-related items. So that you may focus more on mediation without having to worry about finding certain documents, try to gather as many as possible before beginning. If your spouse has access to all of them, be sure to ask for access or copies to any documents that may be relevant. Without understanding what you have and when it was acquired, it can be difficult to devise a fair agreement. It can even be helpful to work together in creating a shared electronic folder so that you both have access. Below are some common documents you may want to locate:
- Federal and state tax returns
- Pay stubs
- W-2s and/or 1099s
- Partnerships and other business interests’ valuations
- Real estate property valuation (it’s okay if you don’t have this yet)
- Kelley Blue Book value on automobiles
- Savings, checking, money market, and CD account records
- Non-retirement investment statements for stocks, bonds, secured notes, and mutual funds
- Executive compensation records, including stock options, restricted stock units, or other executive comps
- Retirement account and pension statements
- Annuities, IRAs, and deferred compensation records
- Life insurance policies
- Credit card and line of credit records
- Health insurance information
4. Determining Non-negotiables
Once you have an understanding of what you will be discussing in mediation, spend some time reflecting on what items are non-negotiable and most important to you. Are there certain things you would have a hard time living without? What are you willing to compromise on in order to maintain what's valuable to you? This is a really important step so that when you come into mediation, you can put all your cards on the table and avoid prolonging the divorce and incurring more fees. This step can involve your children as well, as they may have input regarding what is important to them.
5. Meeting for the First Time
Once you have consulted with mediators and agreed on the best fit, you will have your first official meeting where you discuss items like confidentiality, ground rules for your time together, scheduling, and payment. The mediator will likely get into the nitty-gritty and ask which issues are your priority and pose the most challenges. Some mediators may take some time to explain any laws applicable to your circumstances, as well as the many issues you will be discussing. If you are ever unclear about what is being shared, do not hesitate to ask the necessary questions or even consult with a legal advisor regarding specific issues.
6. Discussing the Details
Depending on what you and your partner are looking for and the complexity of your divorce, the number of sessions you have may vary. It is your mediator’s goal to help you reach an amicable resolution as soon as possible so much of your progress will rely on your willingness to be open and find compromise with your counterpart. Your unique family needs will guide what you discuss in your sessions which includes, but is not limited to, financial mapping and planning, division of property and debts, spousal support, parenting issues including time-sharing, child custody, and child support. Many of these details can be confusing and meticulous so your mediator should take the time to ensure you have a full understanding of the intricacies of all that you discuss and include in your final agreement.
7. Consulting a Legal Advisor
Attorneys are not typically a part of mediation, however, they are more likely to be involved if your partner is resisting to respond to or rejecting mediation and an attorney is needed to serve them with divorce papers. Mediators serve as a neutral third-party who support both of you in reaching an amicable and desired agreement. When it comes to reviewing drafted documents like your Memorandum of Understanding or your final agreement, it can be helpful to consult with separate legal advisors like CPAs and attorneys who are invested in your individual, best interest. Regardless of how many times you meet, it is advised that you consult your legal advisor before signing any written agreements.
8. Signing the Final Agreement
The final step of mediation is signing and completing the final agreement. As mediation concludes, you should expect a drafted settlement agreement that details the decisions you've made regarding assets, debts, child custody and support, and spousal support. Your mediator will prepare all the final forms and your paperwork will be sent to a paralegal to complete the process. You may choose to work with an independent paralegal; however, many mediators have someone they work in tandem with. Once it has been reviewed by a paralegal, you can decide if you'd like to file it with the court or if you'd like to abide by the agreement independent of the legal system. Should you choose to file your agreement with the court, you will not have to appear, and you will hear from them once it is approved.
Committing to work together to dissolve your marriage in a collaborative way may come with challenges but your mediator will be by your side every step of the way. As you embark on this journey, keep an open mind, be as honest as possible, and don’t forget to take care of yourself. Whether it is one or several issues that you are struggling to resolve, mediation is a great path to consider for you and your family’s future.