Divorcing spouses who are having a difficult time seeing eye to eye on the terms of their settlement may benefit from divorce mediation. It’s not an ideal solution for everyone. Some couples will need to take their disputes to a judge. Having said that, many couples use mediation to resolve conflicts while retaining control of the entire process.
The first step is to choose a mediator. The person selected by the couple doesn’t rule in favor of one side or the other. That’s not his or her job. Instead, the mediator tries to facilitate communication between the parties, and guide the discussion toward a productive end.
After a mediator has been chosen, the mediation process usually proceeds in a standard format. There are several stages, each of which we’ll describe below.
Stage 1: Introduction
During this stage, the mediator will ask both parties questions about their marriage and the issues in dispute. Based on the information, he (or she) will propose an approach to the mediation process. That approach will be designed to accommodate the specific issues raised by the parties and help the couple eventually resolve them.
Stage 2: Fact-Gathering
Mediation can only be effective if everyone is working with the same information. For that reason, this stage is designed to fill in the gaps. The mediator will continue to ask questions of both parties, but this time the questions will solicit specifics.
For example, one party might own a piece of property that the other party doesn’t know about. The mediator might ask for details about its size, location, and market value. He might also ask whether the property has been professionally appraised, and if so, when the appraisal was performed and whether documentation can be provided.
Both spouses will be expected to provide financial documents, including bank statements, credit card statements, and tax returns. If one party owns a business, that individual may be asked to provide the most recent profit-and-loss statements.
Full disclosure by both spouses is strongly encouraged.
Stage 3: Statement Of Spouses’ Interests
Once the mediator is satisfied that all of the relevant details have been presented, both spouses will be asked to describe their desired outcomes and reasons for wanting them. This is not the time for negotiation. The couple will have plenty of opportunity to negotiate during the next stage. For now, the mediator merely strives to learn what each individual wants and why that person wants those things.
There are many cases in which the parties want the same things, though their methods for achieving them vary considerably. The mediator is likely to address those issues first during the negotiation stage.
Stage 4: Negotiation
Once the mediator understands both spouse’s interests and their respective motivations, he will encourage both parties to discuss each issue individually. The goal is not for one party to get what he or she wants. It is to brainstorm possible solutions and thoroughly discuss them. The mediator will then help the couple choose the best option from among the proposed solutions.
If the spouses are on friendly terms, this stage of the mediation process is likely to progress smoothly. However, if the couple is quarrelsome or both parties are steadfast in their positions, resolving disputes will be difficult.
The mediator will remind the spouses that the goal is to work together to come up with a fair settlement agreement. Doing so may warrant concessions from both parties on disparate issues. For example, one person may need to concede on one dispute while the other person concedes on the following dispute.
Stage 5: Conclusion
The negotiation stage concludes when all of the disputed issues have been resolved by the spouses. The mediator will go over each one with both parties and review the proposed resolution. Once he confirms that each resolution is still acceptable to the couple, he will draft a provisional settlement agreement.
The agreement forged during the mediation process is not binding on either spouse. Nor is it filed with the court. Instead, the couple uses the provisional agreement as the framework from which they draft an official settlement agreement. The latter document is filed with the court and reviewed by a judge to finalize the couple’s divorce.
Divorce mediation, while helpful in many cases, is not a perfect solution for every couple. Speak with a qualified divorce lawyer to learn whether it’s an appropriate approach for you and your soon-to-be ex-spouse.