Clients are often concerned about the actual process of mediation. What form does it take? Are there different types of mediation? Is it complicated? Although mediation issues vary, there are commonalities between all mediation cases. To illustrate the mediation process, we have outlined a typical divorce mediation. Bear in mind, if it is a different area of the law the actual process will follow a similar path, but the timing may vary.
The Initial Call: Mediation in a divorce case
The client-mediator relationship usually starts with a request for information. Often, clients fall into two categories – those that are aware of mediation and are willing to proceed, and others who are unsure and have lots of questions about how mediation works. Our experienced mediators are more than happy to talk you through the mediation process.We only require some general information at this point. We will ask about your family, the conflict you have and where you are currently in the process. This will be a brief call and, at this stage, will not delve into all the relevant personal details. Following the discussion with the mediator there are two pathways to take mediation further. If appropriate, the mediator can talk with the other party on an informal call. We will then schedule our information / consultation session; i.e., the Joint Parties Session which can be accessed by both parties. This will provide an opportunity to ask questions and clarify any outstanding queries either party may have.
Joint Parties Session
This joint session is open to all parties involved and we highly encourage that all parties attend. The session can take place in person, telephone or video conferencing. This meeting will provide the opportunity for both parties to ask questions about the process and meet the mediators. Our aim is to ensure that you the client(s) feel confident in our expertise before considering engaging us as your mediation team. Remember, there is no obligation to hire us and you are encouraged to talk with other mediators if you prefer.
During this meeting we will provide you with detailed information aimed at guiding you through the mediation process. The documents include: statutes relating to divorce and parenting and copies of relevant court forms. We also include a more in-depth form, which provides us with information such as family details; your marriage; finances; and the present situation. We also provide a list of important financial documents the client is responsible for obtaining. This might seem initially onerous but will save time in the long run and is essential to the divorce process.
Divorce is a very difficult and emotional period of anyone’s life. We aim to make the situation better not worse. Therefore, at all times we pledge to be honest and trustworthy. This starts with the initial contact, and the no obligation information session where we will clearly explain our mediation agreement. No financial shocks down the line, we clearly explain our fee structure and relevant billing information. We respect your privacy; confidentiality is key, and it is important that we discuss the rules regarding confidentiality and the role of the mediator in the mediation process. It is important to bear in mind that your mediator can provide legal information but cannot offer legal advice.
We encourage you to take away all the information we have provided during the session and take your time to review it. If, after a thorough review both parties would like to work with us, call and we will schedule another meeting. Some clients are anxious to start mediation as soon as possible, this is fine if both parties are comfortable with what the mediation process entails. We will endeavor to set up the preliminary meetings to fit your schedule.
Private Preparation Meetings
The preparation meetings are incredibly important. The mediator will meet with each party separately, this gives each party the opportunity to discuss
privately any questions or concerns they may have regarding the process and the actual conflict. As a mediator you are an impartial participant in the process be assured he/she will not be ‘taking sides’. Your mediator will take this opportunity to get to know you both and will endeavor to create a comfortable and productive atmosphere.
The mediator will want to understand what has preceded the entry into mediation. They will ask questions such as, ‘What things have you already agreed upon?’ ‘What are you most worried about?’ ‘What happens when you disagree?’ ‘What are the real ‘sticking points’?’ It is understood that this is a very emotional period and if you are uncomfortable being in the same room for some discussions or want frequent breaks this will of course be accommodated.
First Mediation Session
Following the preparation meetings and the one-on-one session with the mediator we will schedule the first mediation session. We ask that you come prepared with all the documentation provided at the information session completed. The first session may last up to four hours. The venue will normally be the mediator’s office.
In this session we will first address any pressing or urgent matters. Any short-term issues can be addressed, such as one party leaving the matrimonial home and how that will be managed. Although it is the long-term goal we will be aiming for, having a solid structure of how to proceed to reach this goal will help both parties feel more at ease.
The session will proceed with a review of the finances. Quite often there will be outstanding issues on the valuation of assets including houses or businesses. Where appropriate, the engagement of financial advisors, realtors or tax advisors might be engaged. The aim is to formulate a list of all assets and debts that both parties can agree upon. There may be gaps in the financial information at this point, however, it is important that both parties provide all relevant information as soon as possible. If minor children are involved it is important to address possible parenting schedules and to include any imminent holidays.
Mediation Summaries and Follow-up Emails
Following each session your mediator will send via email a summary of agreements reached by both parties and any follow up required.
Clients often want to know how long the mediation will take to reach a satisfactory conclusion. There is no set formula to completion. Closure depends on a number of factors; your pre-mediation agreements; how complex your financial situation and how quickly you both can come to an agreement. Typically, a case may take between three to five sessions, agreement may be reached in as little as month, or even up to a year. It really depends on the parties. The mediator will help to find a balance between a party that wants to get it over and completed, and another who needs more time.
As the sessions progress you will be guided step-by-step through issues that need to be decided. Your mediator will have extensive experience in the identification of possible future conflicts. A contentious area can be the parenting schedule. For example, both parties need to be absolutely in no doubt what constitutes ‘a week’. Is it Monday to Friday or Saturday to Saturday? Clarification and agreed understanding are key to heading off any future issues.
The Final Agreements
If a satisfactory resolution is reached the mediator is responsible for drafting the agreement documents. In the example we are presenting, there are generally three official documents: Final Decree, Parenting Plan and Uniform Support Orders. After review by the parties and the drafts are ready to be signed, we will organize a final meeting to complete the paperwork. The documentation will then be ready to be filed with the court for approval. The time frame for approval by the court and returned varies, but generally we can expect it to take two to four weeks. If approved, the agreement will be signed by a Judge, after which it becomes a court order.
Our mediation service can also assist in drafting further documentation such as: post-divorce amendments to modify or amend agreements; drafting and filing paperwork for filing for approval providing nothing has been previously filed in court. Drafts can be provided for you to review along with your attorney.
We are happy to schedule a further follow-up mediation session with clients if required. Clients are often concerned that deadlines are being met in, for example, complex financial issues. Parenting schedules can also be contentious, and mediation can play a substantial part in a successful transition after divorce. Going forward, many clients have found mediation an essential part of the post-divorce recovery process. Comfortable and confident in the process they have included mediation provision in their agreements. Should there be further conflict, the parties would be required to seek mediation before resorting to the courts to decide on an issue.