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.
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.
How Does It Work?
Full review of the 3 main decision areas.
Division of Property – who gets what
- Identify
- Agree on value
- Help evaluate what will work out best financially for them
Parenting
- Discuss options
- Review their availability for being w/kids
- Review the kid’s activities and needs
- Arrive at a “logical” plan that is in the best interests of the kids and doable
Support, Child & Spousal – usually the most difficult part of the process
- The basic rules are simple – the one making the most pays the one making the least
- There is a computer program used by the legal system [DissoMaster] and accessible to us that has built in formulas
Problem is the formula is based upon the “average of everyone in California”, and of course no family is “average”, each is unique.
Therefore, my process includes helping my clients identify the likely budget needs [themselves & kids] going forward to make sure that both sides better understand why the support needs to work for both. The ultimate agreement, once filed with the court, is just as enforceable as one obtained through an adversarial and expensive process. More importantly, a cooperative/mediated agreement will more likely be adhered too and complied with.
How Long Will It Take
- Minimum 6 months required time period between date filed/service and date completed
- Usually quicker because we only need to coordinate between the 3 of us, not so many others and the court
- Once they get the idea that they are in a fair and just process, they usually become more cooperative
Fear that the other person will be a bully, difficult, uncompromising, intimidate, lie, cheat, hide assets, therefore “don’t they need an attorney”
- My job as mediator is to “level the playing field” by helping both sides understand that ultimately they will come to agreements that are enforceable and implementable for both and be best for the kids
- Once they see that it is in the best interests of both of them to avoid litigation, they are forthcoming
- My financial experience helps make sure that everything is disclosed and that they ultimately do what is most beneficial financially
- If necessary we can access appraisers, forensics, input from their advisors, but in a cooperative environment, not an adversarial environment, therefore requiring less time from these sources
Remember, it is your emotions, your time, your money, your family, therefore it should be your decision.
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.
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.
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 and/or legal document assistant (LDA) 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.
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)