Divorce mediation is a voluntary process in which you and your spouse meet with an impartial third person--the divorce mediator--for the purpose of identifying, discussing, and resolving your differences in a constructive and cooperative manner. My role as your divorce mediator is to help both of you to: identify goals and shared interests; gather information; develop options; and communicate openly, honestly and civilly with each other. As your divorce mediator (trained as a marriage and family therapist), I also help you to express and explore underlying emotions that may be preventing you from reaching an agreement. The ultimate goal of divorce mediation is to help the two of you to communicate with each other so that together you can develop a mutually acceptable divorce agreement that considers the needs and concerns of the entire family, an agreement that each of you is willing to honor in the years ahead. In order for the two of you to reach such a divorce agreement, you will have to meet together with me for several sessions in order to discuss and resolve a variety of issues. We will meet in the privacy and serenity of my office located on the banks of the Farmington River.
While the divorce mediation process will vary somewhat from couple to couple, you and your spouse will go through the following basic steps:
Questions and Answers
Before you begin the formal divorce mediation process, you and your spouse can meet informally with me so that I can describe the divorce mediation process, answer your questions, and give both of you the opportunity to meet me in person. Divorce is a very personal event, and you want a divorce mediator with whom you feel comfortable. There is no charge for this initial one-hour session.
We begin the session by gathering background information and signing an Agreement to Mediate. I will give you some helpful handouts along with forms that you will need to complete on your own time. Then, because virtually all of my clients choose to represent themselves (go “pro se”) rather than hire separate attorneys, we prepare the divorce papers necessary to commence the formal legal process, and I will explain to you how to file these papers with the Court. Finally, we will discuss the major issues that will need to be resolved in the sessions ahead.
Parenting Your Child Together
I begin this session, and every subsequent session, by asking each of you if you have any questions, comments or concerns that you would like to discuss. We address these matters first.
Most couples then like to begin discussing the parenting plan, which used to be called "custody." They start with this issue for two reasons: first of all, the parenting plan significantly impacts most of the other major divorce issues such as child support, spousal support, and asset allocation. Secondly, once parents are able to reach an agreement on the parenting plan, they usually are much better prepared to resolve all the remaining divorce issues. During this session, we will consider a wide variety of possible parenting arrangements so that you and your spouse can create a parenting plan that best meets the needs of the entire family.
I end this session, and every subsequent session, by summarizing what we have discussed, what information each of you may need to bring to the next session, and what we will address at that next session.
Making The Most of Your Resources
The next major issue that most couples usually choose to address is the family financial situation. Prior to this session, each of you will have filled out a Financial Affidavit form that is required by the State. Using these forms, we will determine how your combined incomes and expenses can best be shared. We will discuss possible ways to increase income and/or decrease expenses in an effort to make sure that the basic needs of the entire family--you, your spouse, and your children--are adequately covered. We will also consider the issues of both child support and spousal support (alimony) in reaching a workable family financial plan. During this session, we usually address the issue of the family home, since this usually represents both the biggest asset, and the biggest expense, your family has.
Sharing The Assets and The Liabilities
Now that both of you have reached a workable agreement regarding the parenting plan and the family finances--including child support and spousal support--we discuss the remaining financial issues. Using the information on your Financial Affidavits, we will discuss how you will share the assets and the liabilities. This process will include a consideration of various options, as well as the financial and tax implications of each option, and how these options fit with the parenting and financial agreements reached in previous divorce mediation sessions.
At this session, most couples are also able to complete their Agreement by addressing such issues as health and life insurance coverage, allocation of tax exemptions, college tuitions, and any other matters that you or your spouse feel need to be addressed.
Finalizing Your Agreement
Before this last session, I will send each of you a draft copy of the complete Marital Settlement Agreement for your review, comments, and proposed changes. Normally, we will communicate with each other through e-mails to resolve any outstanding details until we have developed a complete and final Agreement.
At this last session, we will sign the Marital Settlement Agreement as well as the other documents you will need for your final divorce hearing. I will walk you through the procedures so that both of you will be able to represent yourselves in Court at your uncontested divorce hearing. You will not need me or an attorney to accompany you, because this is your Agreement, and both of you will be fully ready and able to handle the hearing. In all the years that I have been mediating divorces, not one couple has ever needed my help at this final hearing. Divorce mediation is empowering!
A typical example
The foregoing example is typical of my divorce mediation cases. It is a very flexible process that can be tailored to the needs and the pace of each couple. As your divorce mediator, my primary responsibility is to help you and your spouse to communicate openly, honestly and effectively in the hope that the two of you will be able to develop a divorce agreement that substantially meets the needs and interests of you, your spouse, and you children. Some couples require more sessions than others, especially if there is a high level of anger, or if their financial situation is complex. However, many couples can reach agreement on several issues in a single session, and therefore complete the divorce mediation process in only three or four sessions. On average, divorce mediation requires between three and six sessions. More importantly, in divorce mediation, you are not pressured into making decisions; instead you are encouraged to make well informed, carefully considered, voluntary choices.
Regardless of the number of sessions you may need in order to create a satisfactory Marital Settlement Agreement, each major divorce issue (parenting, finances, etc.) is handled in the following basic sequence:
- clarify the issue; explore each spouse's needs and interests;
- gather the information needed to make a carefully considered decision;
- develop various options that address each spouse's needs and interests, as well as the realities of your circumstances;
- evaluate the various options in light of each spouse's needs and interests, and the realities of your circumstances;
- select the option that best meets each spouse's needs and interests, and the realities of your circumstances;
- put your agreement (on this particular issue) into writing.
This process is repeated until all of the issues have been resolved, and both of you are ready to sign the final divorce agreement.
How both of you can get what you really want
During the divorce process, many people become angry with their spouse. As a result, people tend to develop inflexible "positions" that they will defend vigorously. Typically, these "positions" are mutually exclusive--either/or, all-or-nothing, black or white--which does not allow for compromise.
For instance, I have often seen fathers who insist that they have sole custody of their young children, even though this position was neither reasonable nor realistic given their work schedule, the ages of the children, and a host of other considerations. Nevertheless, the fathers would staunchly defend this position, often offering a list of "justifications" which range from absurd to purely vindictive.
At the same time, I usually find that the mothers vigorously defend their position that they should have sole custody of the children and that the fathers should have limited access to the children. As with the fathers, the mothers’ “justifications” also range from absurd to purely vindictive.
In short, many couples engage in a destructive power struggle that threatens to derail any hopes for a cooperative divorce agreement. These couples have reached an impasse, and there seems to be no solution to their mutually exclusive positions, regardless of the issue being debated. It is therefore up to me, as the divorce mediator, to help these couples reexamine their separate positions, to carefully listen to each other's concerns, to clarify the realities of their circumstances, and to help the couple to explore options that address the real needs and interests underlying their refusal to cooperate and compromise.
A Typical Conversation
So how can I, as a divorce mediator, help the parties to get past their mutually-exclusive positions so that they can reach a reasonable, realistic, and acceptable divorce agreement? Let’s consider the previous example of the couple arguing over parenting their children.
First, I express curiosity as to how the father will be able to handle sole custody, given his work schedule, possible travel requirements of his job, and the parenting needs of his children. The father usually points out that he can rely on babysitters, day care and after-school programs. I then "wonder" out loud if strangers would be better caretakers to his children than their own mother. At this point, most fathers reluctantly acknowledge that their children would be better with their mother than with strangers. Furthermore, most fathers admit that, given their work schedules and other obligations, they cannot realistically handle sole custody. When I express confusion about the father’s conflicting statements (wanting sole custody but agreeing that such an arrangement is not practical), most fathers express fear that the mother will destroy his relationship with their children. For most fathers, therefore, insisting on sole custody is their way to protect their relationship with their children, rather than a criticism of the mother.
At this point, I turn to the mother, and ask her how she felt when the father admitted that she would be a better caretaker than strangers would be. Most mothers say they are surprised and relieved, since they had assumed that the father’s objective was to discredit the mothers.
Next, I ask the mother how the children would feel if they could see their father for only a few hours every other week. Reluctantly, mothers usually admit that the father is a good parent, and that their children would really suffer if he were not actively involved in their lives. Since many mothers work outside the home, I also ask them if it would be realistic to expect them to assume sole responsibility for the children. Few mothers feel that they should be expected to carry this burden alone. When I express confusion about the mother’s conflicting statements (wanting sole custody but admitting that such an arrangement is not fair to either her or the children), most mothers reveal that they were acting out of fear that the father would not agree to an equitable financial settlement. Most mothers, therefore, think that withholding access to the children is the only way to force the father to make a fair financial settlement.
It has been my experience that the fathers’ real "needs and interests" are met by being assured of their ongoing roles as parents, while the mothers’ real "needs and interests" are met by being assured that they will receive a fair share of the couple’s assets. Once both parents have been reassured by the other parent, they are able to work out a divorce agreement that is fair, reasonable, and workable.
This example provides a simple yet realistic example of how divorcing couples can get "stuck" on issues that seem to have no solution acceptable to both parties. Assuming rigid positions--as many couples do--is a common and understandable way for people to try to maintain control in the face of the destruction, disruption, and distress of divorce. Rigid positions are mere symptoms of the underlying, unspoken fears and feelings of the spouses. Unless they are identified and addressed, these fears and feelings--expressed as rigid positions--often prevent couples from reaching an acceptable divorce agreement.
Unique benefits of divorce mediation
Shifting the parties from "positions" to "needs and interests" is a fundamental strength of divorce mediation; this shift allows each spouse to clearly and openly state what is important to him/her and to have those needs and interests recognized by the other spouse. Furthermore, by helping the couple to shift from "positions" to "needs and interests," I am able to help the parties break impasses and reduce hostility, thus paving the way to mutually-acceptable divorce agreements. When a divorce or family dispute is being handled through the courts, there is no opportunity to express these underlying feelings and needs, no opportunity to understand your spouse's position and find a common ground. As a result, the parties get stuck in rigid positions, each believing that their position is reasonable and virtuous while the other spouse's position is totally unreasonable and vindictive.
A doctor cannot effectively prescribe medication without an accurate diagnosis of the illness. Likewise, no one can help you reach a satisfactory divorce agreement without an accurate understanding of the underlying issues, feelings and needs. Such an understanding is possible only through divorce mediation.
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