The issues encountered in family mediation are Divorce, Separation, Property Division (assets and debts); Support (spousal and/or child; temporary and/or permanent); Possession of Property; Life Insurance; College Education; and a Parenting Plan (Custody).
Parental conflict can be hurtful to children, affecting their self-esteem, happiness, and even their future relationships. Parents who want to avoid or minimize such effects choose mediation because it provides an orderly and effective way to make decisions without involving children in adult issues. In mediation, parents have an opportunity to learn how to separate adult issues from children’s issues and to see the process from a child’s perspective.
More and more frequently, parents are seeking mediation to settle divorce and custody issue, eliminating some of the chaos, confusion, and conflict that often accompany divorce. In the traditional courtroom process, the adults do not speak to each other but are directed to communicate through their attorneys. The parties often do not know for sure what was said by their attorneys to the other party’s attorney or to the judge. Because communication is so cumbersome, requiring a phone call or letter from the client to the attorney, to the other attorney, to the client, and then back to the attorney and again to the initiating client, much of the original communication is lost. Also, the attorneys’ personalities and issues inadvertently become part of the process. Mediation enables the parties to communicate in each other’s presence with the assistance of the mediator trained in children’s issues, the law of child custody, divorce law, and conflict management.
The goal is to create a parenting plan that will consider the child and facilitate restructuring of the family, with attention to the economic needs and rights of the adults. The purpose is to avoid damage that can occur when parents pursue a custody or divorce trial. Children become involved in that process as witnesses, subjects of psychological evaluations, and, ultimately, as victims of the conflict. “Experts” are sometimes appointed to administer psychological tests to the parents and the children, and, in a few short hours (for a very large fee) profess to know what is best for the children. Their recommendations are almost always based on mistaken beliefs or erroneous conclusions. The adults are affected because the process, by its adversarial nature, requires parents to attack each other to win the case. Words and actions are twisted by clever attorneys; misunderstandings and misstatements of fact abound. The end result is that, no matter how good the intentions or the result, the process can damage parents and children.
When adults cooperatively work through problems created by divorce, they can recover from its effects, allowing their children to succeed as well. Mediators also provide Parenting Coordination services as an ongoing solution to protracted conflict over co-parenting. Typically, clients with ongoing conflict meet with the mediator periodically, both individually and jointly, and arrange to retain the mediator for telephone consultations and dispute resolution on a 24 hour basis. For these arrangements, a retainer is required.
In Pennsylvania, property is divided “equitably.” In mediation, parties become familiar with the Divorce Code and how it describes marital property. Generally speaking, marital property is all property acquired during the marriage with some exceptions. Inheritances, gifts, premarital property and non-marital property are excluded; however, interest or appreciation in value on non-marital property can be marital property. Also, non-marital property placed into joint names could be marital.
After the parties determine all of their marital property and marital debt, they look at the factors and circumstances they believe are relevant to an equitable division. Equitable may not mean 50/50, although that is the starting point. The most common factors tipping the 50/50 scale in favor of a party are earning power, primary custody of minor children, and health (among others). In mediation, people are not bound by the Pennsylvania Divorce Code, but knowing what the law provides is important to mediation participants making an informed decision about dividing their property and debts.
Mediation parties look at their needs and finances in deciding whether spousal and child support are appropriate. They also look at the Pennsylvania support laws to determine what the law provides for spousal support, child support, alimony, and alimony pendente lite. Again, it is not unusual for people to deviate from the guidelines; however, it is important to know what the law provides in making an informed decision about what to accept as an agreement.
In mediation, the role of attorneys is limited to consultation, advice, and the drafting and filing of documents. The attorneys’ roles as negotiators and communicators of the clients’ messages to the courts and opposing counsel are greatly limited. Since these services are costly, parties should ask their attorneys to charge a retainer that will take into consideration the limited role of the attorney. The mediator handles negotiation and communication between the clients and drafting a Memorandum of Understanding when an agreement is reached. Instead of paying for two professionals to perform these services, clients are paying one professional fee. In rare cases, the parties will have invested some money and time in mediation but reached an impasse. In such cases, the parties often find that their time in mediation was still well-spent because they narrowed the issues or came closer to reaching an agreement.
Some clients seek to save even more money and hire only one attorney to handle the divorce filings. This is not recommended because, under the Rules of Professional Conduct, an attorney can only represent one party in a divorce and the other party will be unrepresented. It is well worth the money to hire separate attorneys so that each client gets independent and separate legal advice. It should not be difficult to find an attorney who will consult and advise, without entering an appearance in court, at a reasonable charge.
In mediations involving financial matters, parties need to bring information that is essential to knowing the value of property and amount of income. Marital property is defined in the Pennsylvania Divorce Code as all property acquired by either party during the marriage, with certain exceptions. Gifts and inheritances may be excluded, as well as property owned prior to the marriage and not placed in joint names. Other types of property could also be excluded from marital property. However, even non-marital is considered, since the law looks at a party’s “separate property” in determining how to distribute marital property. Therefore, it is helpful to have as much information as possible about all property owned by either party at the time of separation and/or divorce.
It will also be relevant to consider how the property was acquired, and what its worth, if any, was at the time of marriage. Without knowing the parties and their financial matters, it is impossible for the mediator to know exactly what the parties need to bring to the first session. However, in order to save time, the following items should be gathered, and brought to the first session because they could be useful:
- 1. Tax returns for the last three (3) years with W-2s and all attachments.
- 2. Any appraisals of property owned by either or both parties.
- 3. Current pay information.
- 4. Statements for all accounts, including brokerage accounts, bank accounts, money markets, CD’s, IRA’s, etc. Statements will be needed showing current value, value on date of separation, value on date of marriage, and documentation about any withdrawals that may be relevant.
- 5. Pension information as follows: Defined Benefit Plan: This is a plan where the employee is entitled to a set amount per month at retirement age. In dividing this asset, the parties decide between keeping it with the employee and offsetting it with other assets, or dividing it at retirement. In some cases, it is not divided at all (for instance, where only one party will collect social security). It is helpful to have as much information as possible about a defined benefit plan: the plan booklet, the plan description, statements, and information about the “present value,” which usually must be prepared by an accountant who will charge a fee for this service, typically around $200.
- 6. Defined Contribution Plan: This is a plan, such as a 401(k) plan where the employee, and, perhaps, the employer, contribute money to an investment account that (preferably) accumulates growth. If all contributions to the account are made during the marriage, then, usually all that is needed is a current statement. If a portion of the account was obtained before marriage or during separation, then, in order to determine the part of the account that is “marital property” all of the statements, or yearly summaries, will be needed. 6. Information on life insurance policies including cash value, beneficiary designations, premium payments, face value, etc.
- 7. Information on any business interests owned by either party, including written agreements, tax returns, financial statements, appraisals, accounts receivable/payable.
- 8. It is helpful for the parties to have some idea of what their post-separation living expenses will be. Projections and prepared budgets, although not required, are useful tools in the mediation process. Documentation of expenses such as child care, school tuition, extraordinary expenses should also be brought in.