Divorce Mediation

Understanding the Divorce Process 

Divorce is a process rather than an event.  While divorce and dissolution of marriage are legal terms, the legal divorce is only a small part of the divorce process, which generally unfolds in stages.  In Stage 1, for any number of reasons one or both spouses begin to question whether the relationship is viable and sufficiently supportive of their life goals.  In Stage 2, he or she begins to actively consider the possibility of divorce.  In Stage 3, one or both spouses become convinced that the marriage, for all practical purposes, is over, though they may not tell their partner or take legal action for months or even years, particularly if children are involved.  Prolonged ambivalence about the decision is not uncommon. In Stage 4, spouses separate and begin to re-negotiate their boundaries with each other as they take stock of the new realities in their lives.  Learn more about the emotional aspects of divorce.  Stage 5 is the legal process, further described below, which may overlap in time with stage 4.  In Stage 6, partners begin to settle in to their new lives.  When children are involved, they also test how cooperative and flexible they are able to be and how well their legal agreements regarding parenting and ongoing financial obligations work for them under the new circumstances.  Most people feel some relief when the legal process is completed regardless of whether they initially wanted to dissolve the marriage, and many couples who were not able to be truly intimate as partners do extremely well as co-parents, raising healthy, well-adjusted children.  For couples who remain bonded in what psychologists call “negative intimacies,” conflict may continue or even increase at this stage.  

Stage 5; The Legal Process and Options.  Divorce, or dissolution of marriage, requires a court order, a “judgment and decree” signed by a judge in order to be effective and enforceable in the United States.  The majority of states, including Minnesota and California, are “no-fault” states in which a petition by one spouse to dissolve a marriage will be granted.  The terms of the dissolution, however, must be either worked out by the parties or determined by another decision-maker such as a judge or arbitrator.  State law requires the order to address a number of substantive issues.  The three main categories are: (1) Property Division; (2) Parenting (if applicable) and (3) Financial support (child support and expense sharing and spousal maintenance, if applicable).   There are a number of additional issues as well, some of which are optional.  There are many paths to the court order.  

1.The Traditional Adversarial Process.  In the traditional adversarial process, one spouse hires a lawyer or uses court forms to draw up the opening “pleadings” and “serves” the other spouse to get the legal case started.  They then either negotiate on their own or through their lawyers, and file motions to resolve issues in court that they are unable to resolve through negotiation.  Depending upon local rules, they may be required to appear in court periodically to report on their progress or be referred to alternative dispute resolution (ADR) forums. Parents may be required to attend classes such as “Parents Forever” or “Parents Apart” for education about how to be sensitive to their children’s needs during a separation or divorce and not compete for the children’s love, use them as leverage, communicate through them, bad mouth the other parent in front of the children or put a child or children “in the middle.”  Even for those using the traditional adversarial process, only about 2% of divorcing spouses ultimately go to trial.  Negotiations in the traditional process are often done through lawyer communications, typically focusing on legal analysis and likely outcomes in the event that the issues were decided by a court.  Generally, this is the most expensive process option, although court forms are available for those who are able to represent themselves.  

2.Mediation.  For those who want to have more control over the process and decision-making, including the ability to make decisions based upon their own standard of fairness in addition to the legal “defaults,” various alternative dispute resolution (ADR) processes are available.  These include mediation, collaborative law, arbitration and in some jurisdictions, early neutral evaluation.  DIVORCE MEDIATION is a conversation or negotiation between the two spouses facilitated by a specially trained impartial person who has no decision-making authority over the substantive issues.  Many courts have mediation programs for custody and parenting issues.  Privately hired mediators can assist the parties in reaching agreements on all of the issues involved in their divorce.  While they do not provide legal advice, mediators can provide a roadmap for the issues that are required to be addressed.  When spouses choose mediation from the beginning of the process, it becomes the forum for information gathering, using valuation experts as needed, exploration of goals and priorities and agreement-making.     

Divorce mediation sessions generally take place in two-hour blocks of time separated by days or weeks, depending upon the homework needed to prepare for the next session as well as the schedules of all involved.  When children are involved, it generally takes three to five sessions to complete the process.  Participants with a high level of conflict or who own assets that involve complex valuation (such as a lucrative business) may require more sessions.  As a mediator, Rebecca Picard emails the participants a summary of agreements made to date, along with homework items after every mediation session.  If participants are able to reach agreement on all issues, the final summary provides all or almost all of the information lawyers or parties need to draft and file the court pleadings to be signed by the parties and the court.  The mediation summary itself is not enforceable and may not be admissible in court.  When a dissolution of marriage is handled in this fashion and both participants have legal representation before the final papers are filed, usually no court hearing is necessary.  For those who represent themselves, appearing in court pro se, final pleadings will still have to be filed with the court and a brief hearing may be required.  

The Role of Lawyers in Mediation.  The role of lawyers in the   mediation process varies, though it is far more focused than their role in litigation. Spouses are encouraged to get legal advice from lawyers to be sure that they are making informed decisions, even if their decisions are different than what a judge would likely rule.  Some people consult lawyers at the beginning and/or end of the process; some consult them in between some or all sessions; some have their lawyers attend and actively participate in the mediation sessions.  After the parties have agreed on all issues, one spouse’s lawyer turns the mediator’s final summary or memorandum into the documents to be filed with the court and the other spouse’s lawyer reviews them.  Because the role of the lawyers is very focused, the legal fees are a fraction of what they are in the traditional process.  

The role of other experts.   A number of other divorce professionals can be helpful to the process, depending upon the needs of the parties.  These include:  

Coaches, who work with the spouses both individually and together to assist them in maintaining a resourceful state of mind during the process, as well as supporting constructive communication between them.  

Financial Neutrals, who assist participants in understanding the financial and tax implications of various options, analyzing budgets and sometimes providing income projections for the future.    

Appraisers and Actuaries, who provide expert opinions about the value of various assets.  

Neutral Child Specialists, who meet with children whose parents are going through a family law proceeding and provide feedback to the parents about the children’s needs and how they can adjust their parenting or communication with the children to best respond to those needs.  Neutral child specialists can assist parents in developing their parenting plan if they initially disagree about their children’s needs. 

Benefits of Mediation.  At a time when you are likely to feel a distinct loss of control, mediation hands back the control to you.  At the mediation table, both parties have veto power and can determine the schedule and standards used for decision-making.  Many divorcing couples in mediation honor agreements made during the marriage whether or not they are consistent with the likely outcome of an adversarial process.  Mediation is a human process in which all perspectives can be expressed in a safe environment.  It can be tailor-made for your particular needs and dynamics, offering an opportunity to be supported in articulating your viewpoint and understanding your spouse’s.  As long as parents agree to some protective agreements at the outset, children can also be given voice by participating in the mediation process or by meeting with a neutral child specialist.  

Mediators help participants avoid “positional bargaining” and focus on needs, priorities and emotions behind demands and proposals, increasing awareness of the dynamics that interfere with effective communication.  In the absence of a mediator, these needs, priorities and dynamics often are overlooked.  

More than 80% of spouses going through mediation reach agreement on all issues and others reach agreement through their attorneys shortly after mediation.  Mediation also focuses parents on the needs of their children and helps them to distinguish between their needs and the needs of their child or children.  Research has shown that even five hours of mediation can produce a dramatic increase in the amount of contact a nonresidential parent has with the children twelve years after a divorce as compared with the contact of a nonresidential parent who resolved parenting issues through a court hearing.  Learn more about the affect of divorce on children.    

Costs of Mediation.  Mediation services are charged on an hourly basis for session time and summary time as well as a flat administrative fee at the beginning of a case. Many factors influence the length of mediation including your preparation, degree of conflict and the complexity of the assets.  Total mediation fees for both spouses combined when they are able to complete the process in three sessions are usually between $2,500 and $3,000.  Fees for couples without children who complete the process in two sessions are often significantly less.  Fees are paid either up front or at each session.  

Mediation is not for Everyone.  Mediation requires participants to actively participate in the process, speak up about their needs and perspectives, and take responsibility for getting any advice they may need to make informed decisions.  It also requires willingness to work on communication, boundaries and emotional regulation if the level of conflict or intensity interferes with anyone’s personal safety or ability to focus on the issues being considered.  Participating in a free orientation with your spouse offers an opportunity to get some feedback about concerns you may have and to decide if this process is likely to work for you.  

Free Orientation.  For divorcing couples, I offer a free orientation of up to one hour to go over the mediation process and agreement to mediate, provide a packet of information, answer any questions you may have about the process, and briefly discuss issues that may be unique to you as a couple.  This is an excellent way to make an informed decision about your process choices, particularly if one spouse has reached the point of no return and the other does not want to dissolve the marriage.  

3.Collaborative Law.  Collaborative Law is a process in which both parties are represented by specially trained lawyers and defined by a Participation Agreement.  The Collaborative Participation Agreement provides that while each of the lawyers represents one of the spouses, neither lawyer will go to court or use court processes on behalf of the clients other than filing the final agreements and court order.  Discussions and negotiations in collaborative law may be done through “four ways,” in which the parties and their lawyers meet periodically, sometimes including other collaborative neutrals as needed.  Alternatively, parties may choose a Collaborative Team process in which the two lawyers, one or two coaches, a neutral financial specialist and a neutral child specialist (if there are children) form a Team that maintains communication throughout the process.  Mediators or Neutral Facilitator/Coaches may also be used to facilitate the collaborative process, and when unrepresented parties participate in mediation, a mediator may recommend that they consult with collaborative lawyers.  While MEDIATED SOLUTIONS does not provide collaborative law services, Rebecca Picard is available to serve as a Mediator or Neutral Facilitator/coach in a collaborative process.  

Choosing a Process and Using it Well

Research has shown that the way couples navigate the divorce process has a significant impact on their future interactions with each other and their children and even on future relationships with others.   Because divorce often triggers deep fears, it is important to choose a process as a “container” for the emotional, legal and financial complexities as early as possible.  Your choice of a divorce process and your effectiveness in using that process will make a difference.  Even if you choose a different method for going through your divorce, a free orientation about mediation with both spouses together is a great way to get off on the right footing.  

Divorce mediation in Minneapolis is difficult enough without using the correct divorce mediation services.  If it has to do with family law mediation in St. Paul MN, make sure that you use mediated solutions and Rebecca Picard.