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Frequently, mental health professionals may have a rather general idea about what divorce mediation might be, but may feel that they do not know enough about the process to be confident in making referrals to divorce mediation. This article intends to demystify the topic by providing a comprehensive overview of divorce mediation.
Therapists may have a general sense that a particular couple is headed toward divorce. If the couple does separate or make plans for a divorce, it is also likely that the same clients would fare better, emotionally and financially, if they were to mediate their divorce settlement rather than litigate it. Therapists can help their clients make the best of a difficult situation by referring the couple to divorce mediation. The decision about whether to refer, when to refer, and to whom to refer, is similar to making referrals to any kind of professional, from accountant to physician to therapist. Look for experience, training, references and high ethical standards. Referrals may be made at any point of the divorce process, up to the eve of trial. Of course, the sooner the parties step off the destructive adversarial path to divorce to at least consider a more respectful, consensual process, the better. It’s better for the emotional, physical and financial health of all parties involved, including children.
Mediation and mediators
Mediation is the art of building agreements with the assistance of a neutral third party. In other words, mediation is a process in which parties to a dispute (say, a divorcing couple), communicate about their conflict with the help of a trained neutral, the mediator, with the goal of reaching a settlement. Some divorcing couples may be able to work out all issues dividing them without help. However, it is usually the case that people going through a divorce or other family conflict will need some assistance to reach an agreement that most effectively meets their needs and the needs of any children who may be involved.
A frequently asked question is whether a divorce mediator must also be an attorney. There are many outstanding mediators who are not attorneys. At the present time, most mediators come to mediation as a second career. While some come from law, many family mediators come from other disciplines, such as counseling, teaching, or religious ministry. Effective family mediation requires a discrete set of skills and attitudes that is quite different from the set of skills and attitudes characteristic of an effective advocate or litigation-oriented lawyer. Attorneys making the transition to mediation frequently must un-learn behaviors which made them successful as litigators. In short, some attorneys are wonderful mediators; others are not. Whether a mediator is an attorney is just one factor to consider among others such as the mediator’s reputation, mediating style, fee structure, availability, and overall compatibility with the clients.
When referring, look for a mediator who is constantly refining his or her skills through continuing education and through membership in professional organizations such as the Southern California Mediation Association (SCMA) and the Association for Conflict Resolution (ACR). Finally, it may be helpful to have a short list of several trusted mediators available for referral, so that the clients may investigate and find the mediator (or co-mediators) that best suit them.
Many mediators offer an informational interview, either in person or by phone, during which potential clients may meet the mediator and ask questions about the process. The purpose is for potential clients to gather information about mediation in general and to assess whether the particular mediator consulted is a good fit for them, before signing an agreement to mediate.
The primary benefit of mediating a divorce is that the parties control the shape and terms of their agreement. In essence, they create their own customized agreement, tailored to their unique situation. While there are certain statutory items that must be considered, agreements made in mediation can cover a wider spectrum of issues, with more creative, individualized results, than would be possible if a judge were to control the process. In addition, mediation is confidential. Everything said during mediation, any draft resolutions or unsigned mediated agreements are considered settlement negotiations, and therefore will not be admissible in court. (There are some very narrow exceptions to confidentiality that are beyond the scope of this article.)
Research indicates that when the parties are involved in crafting their own agreements, the long-term compliance rates are much higher than when a court imposes terms on a couple. This is a big plus when there are children involved. Also, once parties have come to agreement in mediation, if circumstances change, they are more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances.
Alternatives to divorce mediation
There are alternatives to divorce mediation, some good, some not. The worst-case scenario is the full-blown, litigated trial, costing upwards of forty thousand dollars, pleasing no one except perhaps the attorneys involved, who get to bill for hours and hours of very expensive time. Legal fees can run to $20,000 or more per party in a contested divorce.
Another alternative involving attorneys is the emerging field of collaborative divorce. California recently adopted a statutory framework for collaborative divorce, in which both sides have attorneys, but the attorneys file a stipulation that they will work collaboratively to resolve all issues without going to court. Typically, there are, in addition to attorneys for each side, one or more financial experts, sometimes mental health professionals who “coach” the clients, perhaps a mediator, and a mental health professional who specializes in child development. Logistically, trying to schedule all of these professionals to meet at one time is a challenge, and the cumulative hourly rate of all the professionals involved can be considerable. Collaborative divorce makes sense when significant assets are involved, such as when celebrities divorce. Although a complete package of collaborative professionals is a fairly expensive solution beyond the reach of many middle-class families, smaller-scale collaborative divorce processes are within the means of some middle-class families, and represent a viable alternative to litigation.
Some couples attempt to handle the entire divorce process themselves, with the aid of court forms and a self-help manual. While this can be effective for some clients, it can also be disastrous for many, particularly if there are mistaken assumptions which form the basis of their agreement. As noted below, competent advice is essential, and assistance with the paperwork is frequently desirable.
Overview of the mediation process
Couples enter divorce mediation at many points along the route. Some couples complete mediation of their entire agreement before they file the petition. Others file the petition, mediate their settlement agreement, and then complete the rest of the statutory process. Some couples start out litigating with attorneys, and then enter mediation with or without their attorneys present. There is no one right way; many paths may lead to agreement.
Typically, middle-class mediations might require the services of some outside experts, such as for pension evaluations or business valuations, appraisals of the family home, or various kinds of economic analyses. There may even be times when outside experts are desirable for evaluating what is best for the children.
The scope of the mediation is up to the parties. In a typical comprehensive divorce mediation, all of the statutory requirements are addressed: identification and division of property and debts, parenting plans, and child and/or spousal support. In addition, the parties may choose to mediate topics that a court would not necessarily consider on its own, such as visitation by children with extended family, consequence of one parent moving far away, novel arrangements for payment of the spousal support obligation, and many more. The divorce mediator aims to find ways for each party to meet his or her needs. In popular terms, mediators strive to facilitate the clients in thinking outside of their boxes, so the clients can develop solutions appropriate to their unique situation.
Couples who choose to mediate their divorce are well-advised to contact mediation-friendly attorneys for individual consultations at least once and preferably twice: toward the beginning of the mediation, and again before completing an agreement. When the settlement agreement is about the ninety-five percent complete, the parties should meet with their own consulting attorneys, and then return to mediation to make whatever final adjustments are necessary to their agreement. It is important to emphasize that the consulting attorneys should be familiar with mediation, so that they do not undermine the entire mediation process. Consulting attorneys typically charge an hourly fee, but generally do not demand the large retainers that would be the norm for a full representation with litigation. In some cases, clients will benefit from more extensive consultations with their attorneys, from attorney participation in mediation sessions, or by having their attorney draft a particular section of the settlement agreement.
The actual process of mediation is highly variable, depending on the issues brought by the parties and the mediation style of the mediator. Most divorce mediators start with an orientation, conduct multiple sessions of ninety minutes to two hours, and end with signing the agreement, and handshakes all around. In between, there may be private sessions (caucus), gathering of financial data and expert opinions, if necessary, consultations with separate counsel by the parties, incremental construction of an agreement in joint sessions, and ultimately construction of the agreement.
The end product of divorce mediation is an agreement, in writing, that addresses all of the issues required or desired to be settled by the parties. It may take the form of a “Memorandum of Understanding,” which sets out all of the terms of the agreement, or a “Marital Settlement Agreement” which is filed with their judgment of divorce.
Filing the divorce paperwork
Typically, the mediator is responsible for preparing a written document that sets out the terms of the mediated agreement. The actual petition for dissolution of marriage, and subsequent legal paperwork is a separate task. Although some couples try to handle the divorce paperwork themselves, it can be a daunting project. Filing the petition for dissolution is fairly straight-forward, but filing and serving all of the papers required to complete the process and obtain a valid judgment, is more complicated and can be stressful. Obtaining competent assistance is essential in most cases. Frequently, court clerks return self-prepared documents for corrections, sometimes more than once. One party may retain an attorney to file the case as an uncontested default, either after a mediated agreement has been reached, or in anticipation that an agreement will be reached. Some clients opt for a Legal Document Assistant to help them with the paperwork. The quality of service provided by Legal Document Assistants can vary widely, so care in selection of a Legal Document Assistant is essential.
Estimated costs of mediation
Typically, when one household is splitting into two, money is tight and all expenses are scrutinized. Fees for mediators can vary widely, ranging from $150/hour up to $700/hour or more for long-established, top-tier divorce mediators. Fees may be higher in urban areas than elsewhere in the state. Other costs include the court filing fees for the petition and for a response, if desired. Then, there may be fees for experts for necessary services such as pension evaluations, appraisals, and fees for consulting attorneys or preparation of special orders known as QDRO’s for division of certain kinds of pensions. The fees for experts can vary widely, from a couple of hundred dollars to several thousand, depending upon the complexity of issues involved.
There is no exact way to predict how long or how expensive a mediation might be. The bottom line is that the higher the level of conflict in the relationship, the more it will cost because more sessions will likely be necessary to come to agreement. Also, if the couple’s financial situation is complex, more sessions may be required, and more expert opinions may be necessary. If there are minor children, probably at least a couple of sessions would be devoted to developing a parenting plan and appropriate child support.
After the initial phase of assembling all of the documents and information, some couples can reach agreement in one marathon session. However, most family mediators work incrementally, mediating for three to six sessions (or more) of about ninety minutes to two hours each. Typically, mediation starts with small, easy agreements, and then moves on to the tough ones. In addition, most mediators spend a fair amount of time outside of actual mediation sessions in phone calls or email correspondence with the parties, or in research, writing summary memos and drafting agreements. Predicting the exact cost for mediation fees is impossible; a common ball-park figure is ten to fifteen hours, multiplied by the mediator’s hourly rate, for a relatively simple agreement involving children and support, without attorneys present in the mediation sessions. It might be less if there are no minor children, and it could be much, much more if there are complex financial issues or a higher-than-usual amount of conflict between the spouses. The presence of consulting attorneys in the mediation sessions tends to increase the cost, but they can be essential in complex cases.
Is there anyone for whom mediation is not appropriate?
Individuals with untreated substance abuse issues may not be good candidates for mediation. Families in which there are allegations of abuse and restraining orders are in effect will present considerable challenges for the mediator, and should be very carefully assessed for mediation readiness. Successful mediation relies upon the good faith participation of the parties. It is rare, but possible, that a party may attempt to exploit the mediation process for perceived benefits in subsequent litigation. The ethical mediator continuously assesses, throughout the process, whether mediation continues to be appropriate for the parties.
Supporting the client’s choice to mediate
Typically, referring therapists maintain the ongoing therapeutic relationship to support the client throughout the entire mediation process. While therapists are not “parties” to a divorce mediation, their advice to clients can help the mediation to succeed, or their influence can undermine the success of the mediation. Communication is usually a good thing, and with adequate consents given by the clients, if the therapist has questions about the mediation process, it might be helpful to pose those questions to the mediator directly. Answers may be specific or hypothetical, as determined by the circumstances and the confidentiality of mediation. In addition, therapists may be helpful in encouraging reluctant clients to seek specific advice from mediation-friendly attorneys. For some clients, the idea of consulting any attorney is anathema. Reinforcing the desirability of consultation with a mediation-friendly attorney can be of real benefit to the client. Above all, the most important way to support clients who are facing divorce is by referring them to divorce mediation as the preferred option for a respectful, client-centered divorce process.
Benefits of divorce mediation
Divorce mediation provides many benefits over litigation or court-controlled settlements. Divorce mediation is client-centered; the couple controls their agreement, which they may shape to accommodate their unique circumstances. Divorce mediation is forward-looking, and can plan for the future parenting relationship of parents of minor children. Because long-term compliance rates for mediated agreements are higher than for litigated cases, mediation provides more stability for the children and supported spouse. As circumstances change, the couple is more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances. And finally, divorce mediation tends to be much less expensive and less stressful than the litigated divorce. Divorce mediation reduces the physical and emotional costs of divorce as well as the financial costs.
The late Donald F. Dickey of NH is co-author of this article. His diligence, intelligence, patience, and expertise in the law and in ADR helped make this article possible. Thanks...By Mark Batson Baril