Deconstructing the Divorce Mediation Process:
One Practitioner's Approach
Provided by Anju D. Jessani,
Originally Published at www.divorcesource.com
My objective in this article is
to deconstruct and thereby demystify what happens behind
closed doors during the divorce mediation process. I
describe an approach to the divorce mediation process, with
the caveat that each mediator has their own style, and that
there are many right approaches. Although I have outlined an
approach that assumes the couple has children, I use the
same approach in a more contracted fashion, for couples
without children. It is also important to note that although
I have outlined a mediation process taking five sessions,
many clients are able to complete the mediation in fewer
sessions, and a few clients, especially those with more
complex situations, may require more sessions.
The reality of divorce is that
most clients have similar issues they need to address such
as the house, the pension, and college education for the
children. I therefore follow the tenet that mediation can be
approached in fairly structured manner so as to minimize
mediation fees, maximize the productivity of sessions by
keeping clients focused, and expedite a resolution before
the conflict is allowed to escalate. Nevertheless, I also
believe that the process should also be flexible to properly
address the uniqueness of each couple's situation such as
different religious requirements, or the needs of a gifted
One half of a couple usually phones to make an initial
inquiry about mediation. In his book The Fundamentals of
Family Mediation, John Haynes, the Founding President of the
Academy of Family Mediators, states that "the mediator is
presented with a classic dilemma: how to provide sufficient
information so she can make can intelligent decision about
the suitability of mediation while at the same time not
developing a relationship with the client." While the
mediator will suggest that the other party also call her so
that she can speak to both parties prior to meeting with the
clients together, this may or may not occur.
During this initial inquiry, the
mediator will try and ascertain the following:
- How the prospect received their name.
- The names of the parties and their attorneys.
- Where the parties are in the divorce process with their
- Whether there are any domestic violence issues that would
preclude the couple from mediating.
- The length of the marriage and the ages of the children,
During this initial inquiry, the
mediator will provide information regarding their
background, and an overview of the divorce mediation
process, and a summary of the fee structure. They may
explain that the mediator's role is to help the couple
explore options, and bring knowledge and experience that
provides a context for decision-making, but that ultimate
decision-making authority in the process rests with the
The mediator will also discuss
the role of attorneys in the mediation process.
Specifically, that although attorneys generally do not
participate in the mediation sessions, the two spouses are
encouraged to consult with their separate attorneys
throughout the process. They may also use the services of
attorneys to prepare their separation or divorce agreement,
based on the decisions outlined in the non-binding
Memorandum of Understanding prepared in mediation.
The first session serves as an introduction and overview of
the mediation process. The agenda for the first session will
usually encompass the following:
- Description of mediation, the mediator's role, number of
sessions and fees.
- Parties' objectives for today and for the mediation
- Review of the mediation agreement including fee
- Legal information including the grounds for filing for
- Description of issues to be addressed in the mediation
- Develop list of documents for clients to bring in for the
There may be great anxiety about the session. A number of
things help to put the clients at ease during this session.
Mediators may remind clients that the purpose of the first
session is to provide them with information, and that they
are under no pressure to make any decision until they are
comfortable. The most helpful part of this session is
hearing each party's objectives for the mediation, and
reframing these comments so that they also hear each other.
Clients often state that they don't want to spend
unnecessary money, don't have the intestinal fortitude for a
court battle, want to keep their conflict private, and want
to remain friendly with each other for the sake of the
The mediator will provide a list of documents needed for the
next session. If either party has a defined benefit pension
plan, the mediator will provide forms so that they can
request a valuation of the pension. If there is a business
or professional practice, the mediator will suggest that the
parties need a business valuation by a neutral business
appraiser, and may provide a list of professionals. Other
documents that are usually requested include:
- The children's school schedules with holidays.
- Pay stubs.
- Last year's W-2 Forms for each party
(summarizing annual earnings).
- Most recent federal tax return.
- Copies of all bank, brokerage, and 401(k)/403(b)
- Most recent mortgage statement showing outstanding loan
- A summary of all insurance policies and coverage.
- A market assessment of real estate if property values are
- A list of household items to be divided, if the parties
cannot agree among themselves how to divide these items.
- A credit report for each party (e.g. Equifax 800-685-1111)
With the exception of business appraisals that can be very
time consuming, it usually takes at least two weeks for clients to
collect the other requested documentation and deal with
getting a market assessment on the house. The time lapse is
also helpful in allowing client to process what happened in
mediation and their emotional issues regarding their
impending separation and divorce. That is also the reason to
space out the other sessions, usually leaving at least one
week, and preferably two weeks, between each session.
The focus of this session is on developing the parenting
plan and on data collection. The agenda for the second
session will usually encompass the following:
- Sign the mediation/fee agreement.
- Develop the parenting plan and address related issues.
- Meet with each party alone.
- Collect requested
- Provide budget worksheets for completion by the next
Many states require parents in divorce proceeding to file
parenting plans, with the hope that the parties will be
encouraged to fulfill their parenting responsibilities
through their agreements rather than rely on judiciary
intervention. The parenting plan typically encompasses
non-financial parenting issues, including:
- A specific schedule for parenting time for each party
including weeknights, weekends, vacations, religious
holidays, school vacations, birthdays, and special
occasions, and including procedures for transferring the
- Access to various records including educational and
- Provisions or restrictions on domestic or international
- The impact if there is a contemplated change of residence
by a parent; and
- Participation in making decisions regarding the child
included decisions about religious upbringing, health care
In some states, child support is based on a number of
factors including the number of overnights each parent has
with the child/children. By first developing the parenting
plan, the mediator has an essential building block to assist
the clients in structuring their financial settlement.
During this session, the
mediator may meet with each party alone. Different mediators
have different views on whether this meeting is
confidential; the mediator should discuss this issue so
that clients can proceed accordingly. Most clients appreciate the
time in caucus, as it allows them to share the emotional
details of their personal situation without worrying about
their spouse's reactions.
If the case appears appropriate
for spousal support because, for example, one party has been
out of the work force, budgeting is a necessity. The
mediator may provide budget work sheets for clients to
complete, outlining current and projected expenses.
By the third session, most clients have begun to
feel comfortable with mediation. The focus of this session
is on data analysis for child support and distribution of
assets and liabilities. The agenda for the third session
will usually encompass the following:
- Review child support based on child support guidelines.
- Discuss other financial issues related to the children.
- Review inventory of assets and liabilities.
- Decide how to divide assets and liabilities.
- Collect budgeting information.
Each state has its own child
support guidelines and formulas, and many of the courts will
require proof that parties have been provided with
information regarding what child support would be by the
state's child support guidelines. Clients may choose to
adjust the child support - that is also something the
mediator should work through with clients. Additionally, if
spousal support is also warranted, child support may be
revised upward or downward depending on the amount of
spousal support agreed to in Session Four.
There are frequent and recurring
child expenses that must also addressed during this session
- Work-related childcare.
- Child's share of health insurance premiums.
- Out-of-pocket health care expenses of the child such as
- Other extraordinary but forecastable expenses such at SAT
Some child-related costs cannot
be anticipated at the time of the divorce such as fees for
summer camps or karate lessons. Parents often choose to
share these costs, or pay them in percentage to their
incomes. The mediator may also bring up the following
- Frequency and/or events that should trigger a child
- Age of emancipation for the children as related to the
child support obligation.
- Any religious rights of passage and how they will be
funded such as Bar Mitzvahs.
- The parties' desires regarding the child's college
education and costs.
The first area discussed with
respect to assets and liabilities is personal property. If
the parties can decide how to divide their personal property
on their own such as furniture, stereo equipment,
television, computer equipment, antiques, photographs, the
mediator will usually stay out of that process. If they
cannot, the mediator may suggest they make an inventory of
One methodology for dividing
other marital assets and liabilities is to prepare a
three-column spreadsheet program such as Excel. The total
estate would be in Column One. Columns Two would be reserved
for assets and liabilities the wife is receiving, and Column
Three would be reserved for assets and liabilities for
husband is receiving. As an example, if the parties have a
car worth $10,000 with a $5,000 loan, a house worth $250,000
with a $125,000 mortgage, and a bank account with $130,000,
the total value of their entire estate as indicated in
Column One would be $260,000. If the parties decide the wife
is keeping the car, the car loan, the house and the
mortgage, those values go in Column One, it is clear that
she is getting 50% of the total assets. Please note that
this is a simple illustration and does not adjust for
potential taxes, sales commissions and closing costs that
may or not be considered in the mediation process.
The focus of this session is on budgets, spousal support and
other outstanding issues. The agenda for the fourth session
will usually encompass the following:
- Review parties current and forecasted budgets.
- Discuss what is needed if there are shortfalls including
- Review other outstanding issues including incomes taxes,
religious issues, cost of the divorce, etc...
As with the balance sheet, the
mediator will take data provided by the clients and create a
spreadsheet with the parties' marital budget, and the
projected budgets for each of the parties after the
separation and divorce. There are many issues that influence
the ease or difficulty of this task. It is usually easier if
the parties are already living in separate residences, and
are employees rather than being self-employed. The parties'
capacity for record keeping will influence the accuracy of
the budget. For most clients the goal is to capture the 20%
of expenses that account for 80% of their budget.
The budgets either provide
reassurance that both parties will be self-sustaining and
relatively comfortable, or help identify shortfalls. The
budgeting exercise provides for a more rational discussion
regarding spousal support, be it some type of interim
support for a number of years, or in longer-term
marriages, permanent alimony.
Outstanding issues usually addressed in this session
- Income taxes including exemptions for the children, and
filing status during the separation.
- Religious issues such as possibly religious annulments for
Catholic clients, and Gets for Jewish clients.
- Whether the wife plans to change her name following the
- Social Security issues, including the ten-year rule.
- How the parties plan to pay the legal costs and fees for
The focus of the fifth, and usually the last session
is on reviewing the Draft Memorandum of Understanding and
amending/correcting it. The Draft MOU summarizes everything
the parties have agreed to in the mediation process. The MOU
is not intended as a legal document and will remain unsigned
by the parties. It serves the purpose of putting in writing
the goals, intentions and attitudes of the couple
If clients have not secured
legal counsel, most mediators will supply a list of
mediation friendly attorneys, and will encourage their
clients to make contact with a few attorneys so that they
can inquire about fees, availability and approach.
Frequently, mediators will suggest that clients also review
the MOU with their accountant, tax accountant, and financial
The last part of this session
will be spent answering questions and addressing concerns.
Most clients are comfortable with the MOU, but apprehensive
about moving forward. They should be assured that the
hardest part of the process is done - the decision-making.
Their attorneys will review the MOU, and help them implement
the agreement. The mediator will assure them that if any
conflicts arise during the filing process, during the
divorce, or after the divorce, they are free to come back to
mediation to address those issues. A revised MOU, reflecting
changes made by the clients in this session is mailed to
clients, shortly after this session.