Introduction

In all mediations, the mediator must become familiar with the pertinent information required to effectively serve the mediation process. This requires a certain amount of fact finding and, depending on the situation, can be obtained in different ways.

In regards to divorce, the following are common issues that need to be resolved, either for the short term (I call this an interim understanding, when the court issues temporary orders), or for the long term (covered by a Memorandum of Understanding that results in a Marital Settlement Agreement):

General Understanding of How it Works

During marriage, accumulation of assets & debt is community and is divided equally.

Separate property remains separate unless it has become commingled, then it becomes community.

Children's health and welfare are paramount - physical and financial support is mandatory, but can be equal.

Whoever makes the most usually pays support to the one making less for some period of time (usually half the years of the marriage).

The person receiving support is usually expected to eventually become independently economically viable.

Modification of custody & visitation, child support and spousal support can remain under the jurisdiction of the court, and therefore change over time.

Economic Issues

What will be the living situation (who lives where, who stays in the familyhome)
How, and who, will pay the bills (property taxes, insurance premiums, utilities)
How to meet immediate cash needs
How, and who, will file tax returns - what about taxes due, or refunds
Where, and with whom, do the kids live
Where do the kids go to school
What do we do about upcoming holidays, vacations and other important dates
Spending money for the children
Clothing, medical and other immediate needs of the children
Transportation, special events and activities of the children

Custody & Visitation

Where, and with whom, do the kids live
Where do the kids go to school
What do we do about upcoming holidays, vacations and other important dates
Spending money for the children
Clothing, medical and other immediate needs of the children
Transportation, special events and activities of the children

Assets & Debts

What about the family home - keep, sell or buy-out
Vehicles
Cash equivalent accounts
Stocks and bonds
Retirement funds (IRA, 401k, pensions)
Clothing and personal effects
Furniture, appliances and kitchenware
Credit cards & other debt
Separate Property
Gifts and Inheritances

Confidentiality

When the mediation process is abandoned, what is discovered and learned in mediation is information that can be used, but "sorta" needs to be developed by the next process, usually litigation, and is called discovery. The mediator cannot be asked to testify by either litigant to testify to anything "found out or agreed to" in the mediation.

As to the process of mediation, confidentiality between the parties is what is agreed to by the parties. For example, there can be two extreme understandings: No information shared with the mediator by either party will be shared with the other party.

All information shared with the mediator by either party will be shared with the other party. In my mediations I generally operate under the second understanding, all information will be shared, unless there is an agreement that certain information is not to be shared.

This works especially well in divorce, where there is a requirement that both parties make a full disclosure of all known facts and information pertinent to the situation with the other party. However, certain personal information is not required to be shared.

Fact Finding

Fact finding forms help you collect information in the following categories:

Personal
Children
Assets & debts
Income & expenses
Insurance - type & premiums
Substantiation is generally copies of:
- Income tax returns (usually two years)
- Current earnings (usually two most recent pay periods)
- Current statements of all accounts (checking, savings, mutual funds, stocks & bonds, IRA's, retirement plans, credit cards, mortgage payments, other debt payments)

Mediation Meetings

Meetings can be done several ways:

Three way meetings - all parties and the mediator
Two way meetings - one party and the mediator

The advantage of three-way meetings is they are efficient and everyone hears (but does not necessarily understand!) the same thing. The disadvantage is that sometimes the emotions and "intimidation" factor prevents one party from being effective.

Leveling the playing field is a process the mediator must do to prevent one party from gaining advantage, either through intimidation, knowledge of the situation, experience in negotiations or manipulation. To counter this I will have separate meetings which each party, and if necessary more meetings with one party to help them gain knowledge of the situation or to explain options more thoroughly. I sometimes recommend one of the parties have an advisor. The advisor can be an attorney, other professional, friend or relative.

Legal Requirements

There are certain filings and requirements that must be met, and can be accomplished as follows:

One of the parties does all the "court related" filings
A Paralegal performs all the filings
One of the parties has an attorney do the filings
Both parties have an attorney, and each attorney does the filings for their client.

Legal Rights

Mediation is a common sense solution, based upon the realities of the parties' economic and fact situation. As a mediator I do not dispense legal advice, but I do offer logical explanations of the impact of various alternatives to help resolve your issues.

In California, divorce is no fault, so establishing who is the "most bad" party and that the "most good" party should prevail, is not an issue. When attorneys represent parties, they are supposed to know the law, and speak for their client to a judge who interprets their presentations and makes rulings based upon statutes, legislative intent and precedent cases. Mediation focuses on what is best for both parties and their children.

Emotional

The emotional element of a dispute, especially divorce, is extremely important. It is usually very difficult for the disputants to make sound decisions when their heart and emotions "are in charge", rather than their brain and logic.

The adversarial and convoluted legal system is not designed to lessen emotions - mediation is. The Wiere Mediation process works towards moving from emotional responses to logical and sound decisions.

Psychotherapy plays an important role in this process. Encouraging continuation of, or beginning of, psychotherapy is an important element of Wiere Mediation. I can work with the client's therapists, when appropriate, to help them deal with the emotional challenges of disputes. This is especially important when dealing with custody and visitation (parenting plans).