How Does Divorce Mediation Work?
Once a decision is made to end a marriage through divorce, the divorcing couple needs to resolve a number of different issues before the divorce can be finalized. There are somewhere between twenty and twenty-five different issues that must be "resolved". The actual number of issues is dependent upon the particular couple seeking the divorce. Some issues are resolved by the couple reaching an agreement. Some issues are resolved by the couple making a decision of some sort. Still other issues are resolved by one or both of the parties disclosing some piece or pieces of information. A Divorce Mediator will make the divorcing couple aware of all of the issues that must be addressed before their divorce can be finalized. I literally walk my clients through each issue, helping them along the way to design an overall agreement that is the fairest and most equitable possible when looked at from the perspective of each spouse. The Divorce Mediator itself is conducted in a meeting or a series of meetings that are called "sessions". Generally, a session is a one hour block of time in which the couple and their Divorce Mediator work through issues relevant to the couple's divorce. I am able to help some finish their entire agreement in one session. Other couples need more than one session to successfully work through all relevant issues. Once the couple has worked through and resolved all issues relevant to their particular circumstance, the Divorce Mediator writes an agreement that accurately reflects the overall agreement between them. The couple reviews the agreement for accuracy and ultimately, the agreement may be entered as an exhibit in the court proceeding that finalizes their divorce.
Is Divorce Mediation Less Expensive than hiring attorneys and going through a divorce the old fashioned way - with lawyers and judges?
When you hire a qualified, competent Divorce Mediator, Divorce Mediation is almost always far less expensive than traditional divorce litigation, where each spouse hires a separate attorney and the attorneys argue the spouses' positions to a judge in a courtroom. Rather than hire two attorneys (no one attorney can represent both spouses in a divorce - even an amicable divorce) the couple hires one mediator (one divorce mediator can work with both spouses.) This alone generally cuts the cost of the divorce dramatically. If you hire an incompetent Divorce Mediator, you may end up with an unacceptable divorce agreement and have to start over, which, of course, can be quite costly! Beware of one-stop-shopping type "centers" that try to get you to hire them or their referrals. Ask for credentials beyond "certificates". Mediating divorce does not need to be expensive, my prices can range from $1k – $5k, depending on the issues that need to be resolved.
What is Divorce Mediation?
Divorce Mediation is a civil approach to the breakup of a marriage. It is a process whereby a divorcing couple can meet in the privacy of the office of a neutral person, called a mediator, who should be experienced in the art of negotiation and well versed on the law of domestic relations/divorce, to work out an amicable and fair settlement relative to the assets and liabilities of their marriage and the issues relevant to any minor children they may have.
The process is almost always much less expensive than traditional divorce litigation where each spouse hires an attorney and the spouses' respective attorneys argue back and forth about who should get how much of what and when, and where the spouses are generally told not to have any direct communication with one another...that "the lawyers will take care of it."
Before spouses can be divorced, they must work out a number of issues relating to how their marriage will be dissolved. For the most part, this involves determining what portion of the marital assets and liabilities each spouse will take with him/her and where and how their children, if any, will live and interact with them. Through the process of mediation, each issue is addressed, and an agreement reached until all issues have been covered and the couple has made agreements, decisions and disclosures that are acceptable and fair to each spouse.
Once the overall agreement is reached, the mediator drafts a written settlement agreement, and each spouse reviews this agreement, either alone or with the assistance of an attorney who has been chosen to review it in light of what is fair to the spouse she/he represents. Such attorneys must be carefully screened so as to insure that the attorney's financial interest in creating a war (and thereby billable hours) between the spouses does not overshadow the interests of each party to the divorce in reaching a fair and amicable and inexpensive-as-possible settlement.
Divorce mediation is conducted in one or more sessions, generally a one hour block of time during which the issues that need to be addressed are covered and worked out between the spouses.
The cost of mediation usually includes an hourly session fee that is paid at the time of visit, and a separate charge for the agreement that the mediator drafts once the overall agreement has been reached. There may be, depending upon the individual circumstances, a need for an interim agreement or agreements, in which event, a charge would generally be imposed for each such written agreement.
Divorce mediation is not for everyone. Spouses must be able to sit civilly in the same room with the mediator and to civilly discuss relevant issues that must ultimately be agreed upon. Spouses do not have to like one another, but they must be capable of conducting themselves civilly.
Divorce mediation is also not appropriate in situations where abuse has existed in the couple's marriage. The mediator must be cognizant of this in situations where one spouse dominates the conversation and sets out "agreements" that the couple comes in with. Abused spouses are better off with attorneys representing them because it is too common for abused spouses to fear speaking up for themselves in front of the abusive spouse. Mediation requires a genuine exchange of information and negotiation and this is never present in an abusive situation.
Mediation is the best possible choice for the vast majority of couples who are divorcing. If you would like us to help you determine whether or not it is appropriate in your circumstance, you may contact us at 949-851-5022 for a free telephone assessment.
Divorce Mediation - The Issues
Divorce mediation requires that wife and husband sit in the same room with their divorce mediator, who helps them put together an overall agreement on how to settle their marital affairs amicably, or at least to their mutual satisfaction, without the need to air their issues in open court. The divorce mediator walks the parties through all of the issues that need to be addressed in order to obtain an uncontested divorce, and gives consideration to all options available to each party with respect to each issue so that the best and most informed decisions can be made. This insures that the best possible outcome is achieved and minimizes the chance for hard feelings in the spouses’ future, which is extremely important for spouses who remain involved in one another’s lives because of their children.
There are two types of issues that are covered in divorce mediation. The first type includes issues that are required to be addressed by the state court which will ultimately grant the divorce. This is often called “settling marital affairs”. The list of required issues in this category most often include:
1. Making certain determinations about any children of the marriage, including the issues of who will be making major life decisions for the children, where the children will live, and how they will be supported; and
2. Apportioning the marital home and any other real estate owned by the spouses; and
3. Dividing all personal property owned by the spouses; and
4. Making decisions on what will happen with respect to maintaining and/or paying for certain insurance policies, such as health, dental, automobile, life and disability policies; and
5. Making a fair decision about what will happen with any automobiles or other vehicles owned by the spouses; and
6. Making a fair decision about what will happen with respect to any retirement account(s) owned by the spouses;
7. Deciding who will pay what portion of any marital debt of the spouses; and
8. Determining how any business assets of the spouses shall be divided.
The second type of issue that will be resolved in divorce mediation is any issue that the spouses want to include in their divorce settlement arrangement, which are not legally required, but are nevertheless appropriate based upon their particular circumstance. For example, California does not require spouses to address the issue of their children’s college educations. Nonetheless, some divorcing couples want to include, as part of their divorce settlement, an agreement as to how their children’s college educations will be paid. This is permissible and may be negotiated and agreed upon by the spouses, and their agreement entered as part of their divorce decree. Other examples of issues that fall into this category include:
1. What will happen with respect to any family pets; and
2. What will happen to any cemetery plots owned by the spouses; and
3. What arrangement(s) will be made for each spouse’s use of a joint asset that will continue to be jointly owned, such as a time share unit, vacation home, camper, investment property, etc…
It is not a bad idea to make a list of issues that will be addressed in mediation before getting started. While it is alright for each spouse to separately give thought to how he/she would like to address each issue, it is a very bad idea for spouses to attempt to actually resolve the issues on their list before meeting with their divorce mediator.
After all of the decisions, agreements and disclosures necessary to working out issues in divorce mediation are made, the divorce mediator will put the divorcing couple’s agreement in writing. The writing may take a variety of forms, but the bottom line is that the agreement should succinctly state, in detail, all of the couple’s agreements with respect to each issue covered. Each spouse should carefully review the agreement drafted by the mediator for accuracy. Each spouse may have an attorney review the agreement before the agreement is signed.
Once the agreement has been written by the mediator and approved by the spouses, the couple can proceed with having their divorce processed by the appropriate court, and the terms of their agreement should be written into the court’s divorce decree.
What Makes Divorce Mediation Successful?
Successful divorce mediation requires that each spouse come to the process of divorce mediation with (1) a willingness to listen to one another, (2) a willingness to participate in discussion about how their marital assets and liabilities should be apportioned, and (3) a willingness to have an open mind as to what a fair division of their marital estate might ultimately turn out to be. However, the most important ingredient in successful divorce mediation is a competent divorce mediator.
The best divorce mediators possess a number of important qualities. They are educated, experienced negotiators who are intuitive, non-judgmental, non-biased, creative, authoritative and well…likeable. If you dislike your mediator, you are far less likely to be open to suggestions she may have to resolve your marital issues, which of course decreases your chances for success. In addition to these attributes, it is also quite important, of course, for the divorce mediator to know the law regarding divorce in the jurisdiction in which the parties reside and will get their divorce decree. After all, divorcing spouses need to know the potential legal ramifications of being unable to reach agreement on any given issue, as well as what settlement arrangements will be legally acceptable and legally unacceptable in the jurisdiction in which their divorce will be made legal.
Divorce mediation is nearly always more successful than divorce litigation in which spouses hire separate attorneys and proceed in an adversarial manner by fighting in court about who gets what and who pays what. This is partially due to the fact that mediation is non-adversarial. Rather than fighting out the details, and angering one another to the point where neither is willing to cooperate in giving anything to the opposing spouse, divorce mediation clients talk civilly, through a process of negotiation, with the assistance of someone skilled in working out such agreements, to figure out how they can reach a settlement of their marital affairs that is fair and equitable for each side.
Divorce mediation is less stressful than traditional divorce litigation, creating less animosity between spouses and enabling them to exercise better judgment and make better decisions that are more likely to stand the test of time after the divorce becomes final. This contributes to the overall success of divorce mediation.
Another factor in the success of divorce mediation is that control over the divorce process is placed directly in the hands of the divorcing spouses rather than in the hands of adversarial attorneys and judges who know little about the parties’ circumstance and probably never will. By controlling the resolution of each issue in the dissolution of their marriage, spouses are literally able to design their own divorce decree, making them far more likely to adhere to it without hard feelings once their divorce becomes final. A divorce decree that is designed in a courtroom by persons who are strangers to the lives of the people affected by its terms is less likely to stand the test of time and more likely to cause new litigation to arise between the spouses in the future.
In conclusion, the things that make divorce mediation successful include spouses who come to it with the right frame of mind by engaging in a non-adversarial process which they control with the assistance of a competent divorce mediator. Spouses who plan to divorce and spouses who have begun the process of divorce are well advised to consider how the divorce mediation process works and consider whether it might be a beneficial way for them to proceed toward dissolving their marriage.
What Divorce Issues Can Be Worked out in Divorce Mediation?
Every issue germane to divorce can be worked out through mediation. A thorough mediator will cover every one with her clients, making sure that no surprises confront the spouses when their divorce is being finalized. Issues will include at least all of the following:
Children – Who will have custody? Where will they live? When will they spend time with each parent? How will the parents support them?
Real Estate – What happens to the Marital Home? What happens to any other real estate that the couple may own – jointly or individually - including timeshares, vacation homes, interests in real estate held with people other than the spouses?
Insurances – Health, Dental, Life, Automobile – all of these must be addressed.
Vehicles – Automobiles, motorcycles, boats, campers…whether owned or leased, financed or not. Who will own them? Who will pay for them?
Cash assets – Bank accounts, investment/brokerage accounts, stocks, bonds, mutual funds, certificates of deposit, etc… Who gets them?
Retirement accounts – Will these be divided? If so, what share does each spouse receive?
Credit Card debt – Who will pay this?
Loan debt – Who will pay this?
Business ownership – What is the value of any business(es) owned by either spouse? Is the other spouse entitled to any portion of it? How much does each spouse get in terms of business assets and liabilities?
Income Tax Filings – How will the spouses file this year? Next year? Who gets the refund, or pays the liability? Who gets the tax deduction(s) for the children, if any?
Miscellaneous Issues – Pets, Collections of any type, Cemetary Plots and other issues relevant to the particular spouses in their case.
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If you or your attorney would like us to evaluate whether or not your case is appropriate for mediation, we would be happy to help you decide. Call us for a free assessment at 949-851-5022.
Do we need attorneys if we use a Divorce Mediator?
You are not required to have an attorney, but you are not prohibited from hiring one should you chose to do so. There are times when it is beneficial to consult with an attorney during the mediation process. While the vast majority of clients in Divorce Mediation tend not to hire attorneys or to seek opinions from attorneys during the process of mediation, there may be times when consulting with an attorney is beneficial. A competent mediator will advise you when a consultation with an attorney could be beneficial.