The Mediation Process
Mediation is a voluntary, informal and confidential process in which the parties choose to work together with a neutral third party (mediator) to resolve their disputes in a mutually beneficial way. It is an effective and less costly alternative to contested litigation. In almost all cases, the parties are more satisfied with solutions that have been mutually agreed upon and are more likely to follow through and comply with the terms of an agreement reached in mediation. With the aid of a mediator and the advice of their attorneys and other experts, parties can make their divorce or separation less painful for themselves and their children and prepare for a new stage in their lives.
In mediation, the parties to a dispute meet with a mediator in one or more “mediation sessions” to discuss ways to resolve their dispute. The mediator listens to each party’s description of the dispute and helps them to communicate with each other in an open, respectful manner and to define their problems without assigning blame. The mediator helps the parties to understand each other’s needs, interests and concerns, to identify the issues that need to be decided, and to reach an agreement that is satisfactory to each of them and ensures that many of the same problems don’t come up again in the future. While the mediator controls the process, all decisions on how to resolve the issues are made by the parties, not the mediator.
Rather than focus on the negative events that led to your divorce or separation, mediation focuses on the opportunities of the future. Because mediation fosters an environment of mutual respect and trust, participants are able to maintain dignity throughout the entire process. In mediation, there is no “winner” or “loser.” This aspect of the process is especially important when the parties will have ongoing, long-term relationships with their children, mutual friends and others.
I encourage parties to seek legal advice from attorneys whenever they feel it is appropriate, both during the mediation process and prior to signing their mediation agreement. However, attorneys do not participate in mediation sessions.
I also encourage parties to seek advice from mental health professionals, accountants, appraisers, financial advisors, or other experts if they have questions or concerns regarding mental health issues, the tax consequences of their divorce, the valuation of their property, how to best refinance their debt, how to best plan for their children’s college expenses, etc.
As a participant in mediation, you have the following rights:
- To be treated in a civil, respectful manner by the other party and by the mediator
- To receive complete financial disclosure from the other party
- To bring up any topic or issue that is of concern to you
- To present options and solutions and have them considered by the other party
- To refuse to agree to anything that you are uncomfortable with
As a participant in mediation, you also have the following responsibilities:
- To treat the other party and the mediator in a civil, respectful manner
- To provide complete financial disclosure to the other party and the mediator
- To consider all options and solutions offered by the other party or the mediator
- To make a good faith effort to reach compromises and solutions
- To not agree to anything that you are uncomfortable with
Treating the other party and the mediator in a civil, respectful manner means that, throughout the mediation process, you will make every effort not to swear, shout, interrupt each other, call each other names, berate the other party about past behavior, make threats, use delay tactics, or intentionally misrepresent or hide relevant facts.
After your last mediation session, I will draft a detailed mediation agreement that accurately reflects the agreements you reached during our mediation sessions. After your attorneys review the mediation agreement with you, I will make any necessary changes. If you do not have an attorney, I will encourage you to retain an attorney to review the agreement before you sign it.
Why Mediation Works
When we use the word “divorce” to describe the official end of a relationship, we are really talking about four different divorces that are taking place.
The “legal divorce” is granted by the court and deals with the business end of your divorce by dividing all your assets and debts, as well as formalizing decisions regarding child custody and placement, child support and spousal/partner support.
The “financial divorce” is the literal separation of the property and debts that you have accumulated during the relationship.
The “social divorce” defines the changes in your lifestyle and friendships because of the divorce.
The “emotional divorce” affects your feelings as you cope with the divorce. The emotional divorce goes through the stages of denial, anger, bargaining, and sadness, not necessarily in that order, and finally, acceptance.
A traditional, litigated divorce primarily handles only the legal end of your divorce.
Mediation is sensitive to all four aspects of divorce and helps you work out plans for handling all of them. When you mediate, you are better able to come to grips with the end of your emotional partnership and attain closure for the relationship, while at the same time finding a way to continue your parenting partnership by creating a parenting plan that allows both of you to continue raising your children together. Because mediation fosters an environment of mutual respect and trust, participants are able to maintain dignity throughout the entire process. For most parties, it is less stressful for themselves and their children, and the most responsible, caring and creative way to dissolve their relationship and address future issues. In addition:
Mediation saves time.
A litigated divorce often takes six months to two years to complete. Mediation avoids a long, drawn-out court battle, and usually takes a few weeks to a few months to complete.
Mediation saves money.
It normally takes many more hours for an attorney to litigate the issues than to have a mediator mediate your case. Even though most divorce cases settle before they go to trial, in addition to the time it takes to negotiate the settlement agreement, attorneys often prepare for trial in case a trial is needed. Whenever two attorneys communicate with each other or the court, you are paying the hourly rate of two attorneys. In other words, when you participate in mediation, rather than paying for two attorneys, you share the cost of one mediator. In addition, if you have a dispute concerning the legal custody or physical placement of your children and the dispute is resolved through mediation, there is no need for a court-appointed Guardian ad Litem (GAL) or payment of GAL fees.
Mediation sessions are scheduled at times convenient for you.
Evening and weekend sessions are available to accommodate your schedules.
Mediation gives you more control.
You have control of how your property will be divided and how your children will be raised and supported. In a litigated divorce, the lawyers often make many of these decisions for you during settlement negotiations, and if the case doesn’t settle, the judge makes these decisions for you. In mediation, you are able to make these decisions in a manner that reflects your own (not a judge’s) values and sense of fairness.
Mediation accommodates nontraditional situations.
In a litigated divorce or child custody dispute, your settlement agreement and decisions made by the court are generally required to fit into preconceived notions or legal standards. The legal system is generally not set up to consider nontraditional situations or provide solutions in those situations. Mediation allows you to set your own standards and decide what is right or most fair for the two of you, and welcomes unmarried parties, whether gay, lesbian or heterosexual.
Mediation improves relationships and communication.
In a litigated divorce, parties are often discouraged from talking to each other about issues in the case. It is assumed that the parties have become enemies, and you are often required to testify in court and say bad things about each other.
Mediation encourages you to talk to each other to try to resolve things in a calm, respectful manner, assumes that you have common goals and will have an ongoing relationship as parents, and eliminates the need to criticize each other in court.
Parents who mediate provide positive role models for their children — they demonstrate that adults can solve their problems by talking, listening, caring and collaborating, not by fighting each other.
Mediation is more private.
A litigated divorce is a public process. Documents filed in court are matters of public record. Mediation is a confidential process. In Wisconsin, statements made during a mediation session, as well as all materials used to develop a mediation agreement, generally are not admissible in court. Nothing said or used during mediation is public record other than the final agreement. If you reach an agreement through mediation, you won’t have to recount, in an open courtroom, the intimate family matters that contributed to your decision to file for divorce.
When to Start Mediation
Mediation can begin as soon as you are both ready emotionally.
Sometimes a person’s emotional state may be a barrier to participation in mediation — for example, if you are in the anger, sadness, or denial stage of the “emotional” aspect of your divorce or separation. If your life has just been turned upside down, the mere suggestion of trying to sit down with each other to negotiate a divorce or separation agreement will probably be overwhelming. However, if both parties are in the bargaining or acceptance stage of an emotional divorce, it is probably a good time to consider starting mediation. Starting mediation as soon as you are both ready emotionally, before either of you has invested a lot of money in having lawyers try to negotiate a settlement for you, makes good financial sense.
Mediation is appropriate at any time during the divorce or separation process.
Once you have decided to live apart, you will probably need to make some initial or temporary decisions to deal with your living arrangements, your children’s living arrangements, and the division of your money and property. As your mediator, I can usually help you to reach a temporary agreement in one or two mediation sessions.
If you have already made temporary living and financial arrangements, I can help you to reach a final settlement agreement. Even if you reach an impasse on one or more issues, I will draft a partial mediation agreement for you so that there are less issues remaining to be resolved by your lawyers or the court.
A mediator can help you to resolve many of the post-divorce/separation issues that often develop.
If the judge orders that your house be sold and the proceeds be divided, disputes may arise regarding whether to list the house with a real estate agent, with whom to list it with, what price to ask, what repairs should be made prior to sale and how to pay for them, what offers to accept or reject, and so on.
The decisions that you previously made regarding child custody, placement or visitation, child support or spousal/partner support may need to be revisited due to significant changes in your circumstances.
As your mediator, I can help you to resolve these and other issues that often develop after a divorce or separation.
Choosing a Mediator
Mediators come from many different professions and backgrounds.
In order to mediate child custody and placement cases assigned by family courts in Wisconsin, a mediator must meet certain training or experience requirements, including completion of 25-hours of approved mediation training. However, there is no specific training, experience or license currently required to provide mediation services to private clients in Wisconsin.
Mediators can be retired or active family court commissioners or judges, lawyers skilled in family or divorce law, psychologists, marriage and family therapists, social workers or other mental health professionals trained in mediation.
What type of mediator will you be most comfortable with? If the primary issue in dispute concerns, for example, the tax consequences of your divorce, you might consider trying to find a mediator with an accounting or financial planning background. However, in most divorce cases there are a variety of issues regarding your children, your property and your money that need to be addressed, so you’ll probably want to look for a mediator who is generally qualified in divorce mediation, rather than a specialist. At any time during the mediation process, if you need any legal questions answered, you can obtain advice from an attorney. If you have questions or concerns regarding the tax consequences of your divorce, the valuation of your property, how to best refinance your debt, how to best plan for your children’s college expenses, etc., you can obtain advice from an accountant, appraiser, financial advisor, or other expert.
Mediators have different styles of mediation.
Some mediators prefer to simply act as a neutral third party to facilitate communication as you and your partner sort through the issues, while others are more willing to take a more active role, sometimes early in the mediation process, in suggesting settlement provisions. During mediation, some mediators will assist you in working through some of the emotional issues of your divorce or separation. Some mediators communicate with parties in a more business-like manner, while others have a more informal approach.
Some mediators work in a very formal, professional-style office, while others prefer to have more casual office setting.
Some mediators will meet with you only during regular business hours, while others are willing to schedule sessions during evening hours and on weekends.
You should be comfortable with your mediator’s personality, honesty, ability to be objective and neutral, philosophy of dispute resolution, and degree of sensitivity and empathy.
Mediators charge different fees.
Most mediators charge an hourly fee for their services, while some charge a flat fee. Some mediators offer a “sliding scale” or reduced fee arrangement for couples having financial difficulties. As a general rule, mediators who are lawyers or retired or active family court commissioners or judges charge a higher hourly rate than mediators who are therapists, social workers or other mental health professionals.
Some mediators charge only for their time during mediation sessions, while others also charge for other time that they spend on your case, including phone calls, e-mails, review of their notes and other written materials in preparation for a session, drafting correspondence, and drafting the final mediation agreement or summary letter. Some mediators provide an initial consultation at no charge.
After you have met with a mediator, ask yourself the following questions:
Does the mediator have sufficient training and experience to be able to assist us in the resolution of our disputes?
Is the mediator someone that we can be comfortable with, can work with, and can be honest with? In other words, are we comfortable with the mediator’s personality and approach, and can I imagine discussing, and my partner discussing, personal issues candidly in front of this mediator?
Is the mediator someone who will treat us equally, and not show bias toward one of us?
Will the mediator be able to schedule sessions at times and locations that are convenient for us?
Can my partner and I afford to pay the fees charged by the mediator? If not, is the mediator willing to accept a lower fee to accommodate our financial circumstances?
Choosing a Lawyer
If you are planning to retain a lawyer to help you with your divorce or separation and are interested in mediation, you should try to choose a lawyer who is “mediation friendly.” Some lawyers are not great proponents of mediation, often because they feel their client has a better chance to “win” the case if the lawyer is directly involved in the resolution of all issues, or because they may view a mediator as taking away some of the lawyer’s billable hours. However, many family law or divorce lawyers have no problem with their clients participating in mediation; in fact, they encourage their clients to do so. They support their clients through the mediation process and make themselves available to provide advice when the client comes back with questions. Studies have shown that lawyers who utilize a mediator have happier clients who are more likely to make referrals to their lawyer.