Divorce Mediation

by Maribeth Blessing

I. What Is Mediation?

A. Divorce Mediation is the step-by-step process through which separating couples arrive at an equitable and suitable agreement about their differences. Topics for discussion may include distribution of property issues, distribution of debt, financial and support issues, and parenting issues.

B. Mediation provides an alternative to the adversary system which casts divorcing spouses as opponents. In Mediation, the spouses are viewed as cooperative adults who are restructuring their lives and the lives of their children.

C. Mediation is conducted under the guidance of a trained professional who helps the couple make the necessary decisions about their changing future.

II. Who Uses Mediation?

Mediation is used by couples who are only separating, by those who are also divorcing, by couples prior to marriage, and by couples post-divorce.

III. Why Choose Mediation?

By selecting Mediation, individuals in a dissolving marriage are choosing to take charge of their lives, maintaining their sense of dignity and self-esteem. They are saying that they prefer to end their marriage by a cooperative and rational procedure which minimizes the anger of divorce and the negative impact of litigation.

IV. How Does Mediation Work?

In Mediation, the couple proceeds through a series of steps. Briefly these are:

A. Both spouses attend an orientation session in which a detailed explanation of Mediation is given. Parties are encouraged to have separate counsel to advise them of their legal rights as they go through the process of mediation.

B. After the couple decides to mediate, they sign an Agreement to that effect covering the scope of the Mediation. At that time they will also sign a Fee Agreement and are asked to make a deposit covering the cost of the orientation and a retainer fee against which the time of the Mediator will be billed until depleted. The unused portion of this deposit is returned upon completion of Mediation. If depleted prior to the completion of the Mediation, the Mediator may require an additional retainer. The Mediator may also allow payment on a session by session basis with a smaller initial retainer requirement to be applied to fees incurred in addition to the sessions, such as the drafting of the Agreement, telephone calls, research and administrative costs.

C. At the first Mediation session, the couple may enter into a temporary agreement for the duration of Mediation to address those concerns that require immediate and necessary resolution.

D. The remaining sessions are used to help the spouses arrive at decision concerning any or all of the following:

1. Division of Property

2. Spousal Maintenance

3. Child Support

4. Parenting Schedules for the Minor Children

5. Any other Topic or Issue Agreed Upon by the Parties to be addressed by the Mediator

E. The mediation culminates in a Memorandum of Agreement which outlines the specifics of the couple's separation agreement.

F. As the last step, the couple may consult with one or two attorneys concerning the settlement reached. Typically they will have various questions regarding the tax implications of their settlement. One attorney will then prepare a final Settlement Agreement incorporating these elements agreed to in Mediation. Once the couple signs this document, they may then have it made part of their Divorce Decree.