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The Process of Divorce Mediation
Mediation is
most like a dance – at times everyone is moving to the same rhythm and is
swept along with the forward momentum. At other times, it feels like each
party is “moving to the beat of a different drummer” and the energy moves
out in diverging directions. The parties control the speed of the mediation
process. It goes where and when you want it to. My task is to keep us
focused on what you have declared to be the important issues and to keep the
energy from getting stuck in unproductive digressions. Most amicable
divorces take between four to six 2-hour sessions to conclude. If there are
complicated property or child custody issues it may take longer.
The process
begins when one of you calls me on the phone. I will encourage you to ask as
many questions as you need to and will be assessing the probability of a
successful mediation. If we both feel that that mediation might work, I will
ask you to have your spouse call me so that I can have the same conversation
with him/her. This is a very important step! If we begin our first
face-to-face session with one of you feeling that the other has a closer
relationship with the mediator, then we don’t start on a level playing
field. If, at our first meeting, I have not had the chance to speak with
both of you individually, I will take the time to do it then.
The first
session is where we get a lay of the land and find out what the issues are.
First, I will walk you through the stages of mediation and describe my role
in the process. I will have you read through the contract for my services so
you will know exactly what to expect in terms of fees, confidentiality,
timelines and logistics. Then I will ask each of you to share what your
major concerns and wishes are at the start of the mediation process. There
may be immediate concerns about living arrangements, temporary maintenance,
children’s schedules, etc. These will be dealt with right away. Remember,
nothing agreed to in these sessions has legal standing until a judge
approves your settlement and enters it into the court record. What mediation
is doing is helping you stay in control of your lives while you’re working
towards a long-term solution without resorting to the courts. Once we have
established the major issues that need to be addressed, I will help you draw
up a list of these issues and then prioritize them.
This first
session is also my first chance to observe who you were as a couple and what
kinds of spiritual agreements you were, or still are, working out with one
another. I may bring these to your attention where it is appropriate so that
you can remain connected to the deeper soul issues that are being processed,
even as we struggle with bank accounts and who picks up the kids from soccer
practice.
The second
session is all about fact-finding. (The legal term is “discovery”) I will
give each of you a long list of assets and liabilities and walk you through
the procedure of how to discover and document every single thing you own or
owe. It will seem arduous, but it is absolutely essential to do this right.
Because the outcome of mediation is based on the idea of informed
decision-making, it is imperative that all the facts be fully disclosed and
nothing left in the shadows. Even if you think that the piano Aunt Martha
gave you in her will that has been at Cousin Floyd’s for the last ten years
is not marital property, you need to list the piano in your assets. If you
don’t know what your 401(k) is worth, now is the time to find out. If you’ve
been avoiding adding up the balances on your six credit cards, now is the
time to do that. If you think the house is worth $350,000 and your spouse
thinks it’s worth $325,000 what do you want to do in order to reach an
agreement? What methods of determining value shall be used and what kinds of
expert opinions do you want to use? What we are trying to do is find every
last strand to weave into the picture so that we can create the best and
most equitable settlement possible, and avoid that dreaded loose thread that
threatens to unravel the whole deal.
The third
session is the pain-staking work of going through your asset and liability
forms and making sure we understand everything that is at stake. Ideas that
you brought in with you about your needs and wishes may change radically as
you begin to see the big picture and how things will be influenced over
time. If your situation is complex, we may want to bring in experts to help
explain some of the ramifications of your data. Tax attorneys, financial
planners, child psychologists, doctors – any of these consultants may be
asked to join us in session to help answer questions you may have. I have a
list of professionals that are used to working with couples in mediation, or
you may have experts with whom you’ve worked before who would be willing to
come in.
Our goal for
the end of the third (or fourth) session is to have a rough draft of a
property settlement and child custody arrangement where needed. This
document is called the Memorandum of Understanding and is exactly
what it says – a point-by-point list of what the two of you understand the
situation to be and how you have decided to divide the assets, liabilities
and responsibilities of your marriage. Up to this point you have worked in
good faith within your own parameters of what is fair and just. We may have
checked state guidelines that pertain to maintenance or child support to get
a rough idea of how a judge might settle things, but the mediation process
allows you to honor your own unique circumstances and really guide the
course of your own ship.
Now you each
need to hire a consulting lawyer to read through the memorandum you’ve
created and give you feedback about any legal ramifications that might be
there which you did not anticipate. There are many lawyers who are
sympathetic to the mediation process and will be happy to hire themselves
out for a two or three hour period to go through your document and red flag
anything that looks questionable to them. It is not their job to try to talk
you into changing the agreement to be more favorable to yourself – that is
what they do if you hire them to represent you in a contested divorce. They
are simply using their expertise in knowledge of the law to let you know if
there are consequences of which you might have been unaware that would
affect your informed decision-making.
The last
session occurs after both parties have had their respective lawyers examine
the memorandum of understanding. If issues were raised that need to be
addressed we do it now. Then the two of you decide which lawyer will
actually write up the document that will be put before the judge. There will
be no changes in the content of the memorandum, but certain legal
terminology is needed to make the decisions legally binding. I will let you
know the process that the memorandum will go through and when you can expect
to be legally divorced. Any other issues or concerns can be addressed.
Since I have
been holding the space for the soul throughout this process, I now invite
both of you to participate in a brief ceremony celebrating the end of a
successful mediation process and to marking the end of your relationship as
husband and wife. If you have benefited from the spiritual element of the
work, I might have asked that you bring some memento of the marriage – the
vows you made when you were married, a photograph, some token object with
shared memories – and we will create a ritual of farewell for the two of
you. [A full Ritual of Divorce can also
be done. See outline.]
Every
Memorandum of Agreement has built into it a paragraph that stipulates that
in the case of dispute over any issues in the agreement, arising from change
of circumstances or from non-compliance, that both parties will return to
mediation to try to work through those issues. If mediation worked for you
in the divorce process, it is likely that it will work for you in any
post-decree (that is after the decree of divorce has been issued) issues.
This is a much speedier and less costly way of working through the changing
needs of children or circumstances than hiring lawyers to do battle.
In fact, you
may find that participation in the process of mediation will have huge
benefits for you in all your future relationships as you begin to see how
powerful words and intentions can be, and how the soul moves behind all of
your desires and beliefs, steering you faithfully towards your own north
star.
Rev. Rebecca Armstrong |
