HOW DOES MEDIATION WORK?
OAK TREE MEDIATION PROCESS
Divorce mediation can bring sanity to a process that is the most stressful time in life. It is hard to be calm and have a plan for something you never expected to happen.
For many facing divorce, the look at the event as a target – something they need to get done. They consider divorce as a goal, target, outcome, objective, escape, or a solution. What is generally missed is that divorce is a transition, a movement from one place in life to another. They also forget that divorce is only one option amongst many.
Those options, all of which may be explored in mediation, may include:
HOW MEDIATION HELPS
Dr. Wendy Hutchins-Cook noted that couples in divorce are pulled away from what makes up a healthy family. That sounds obvious, yet the underlying impact is critical to your health.
The three basic elements are:
When divorce does occur, people fall from that baseline. Life is chaotic, and a path forward is obscured. There is a fight or flight response in many. This is the result of an acute injury to the relationship. At that point, a therapist may be contacted or legal counsel may be consulted.
In this timeframe, both sides are evaluating their situation. At a point, one side may, as Caryl Rusbult puts it, reach the Comparison Level-Alternative (CL-Alt). That is the point when one side decides, “Anything is better than this.”
From that point forward, the choices will either lead toward stagnation, healing, or further trauma.
The research of John Gottman and many others have shown that couples coping with divorce, especially when they are suffering under criticism and contempt, are 35% more prone to illness. Getting back to that Baseline Criteria as quickly as possible is a good reason to seek mediation or collaboration in divorce.
Both options provide support for you and work to bring down the levels of animosity in the relationship. One Last Look™ and F-A-C-C-T can provide insights into how this may work for you.
THE OAK TREE MEDIATION PROCESS
1. Gathering Information.
The process explained in ONE LAST LOOK™ sets the groundwork for your divorce mediation: Our neutrality is established as third-party mediators.
We are gathering critical information—assets, income, and expenses.
A financial profile is created that serves as a snapshot of your financial situation and the basis for your disclosure forms.
This financial background builds an awareness of what’s on the table, the type of assets a couple holds, and what those assets may to the family as they are divided.
2. Mediation Begins.
The mediation process involves a series of meetings to build objectives and develop a strategy. These meetings usually run between 90 minutes and two hours long. Each situation is different, and the number of steps can vary. Mediation is not a “cookie-cutter” process. The following are items that may be in a meeting. These are not intended to be any order other than the first meeting.
First Meeting. Our goal at this meeting is to get to know the couple and build an understanding of their interests. We explain how the mediation process works and what can be expected. Ground rules are laid out, and documents, if not already signed, are completed to initiate the mediation relationship.
Information Presentation: We prepare and present a general outline of settlement issues, as outlined by the couple, for both to consider. This may include financial materials.
Finding A Path Forward: We may hold separate meetings with each spouse. Our goal is to gain a perspective of the situation from each individual’s point of view. It’s a time for us to learn what issues are important to each individual and what outcome they are seeking.
Finding Agreement: Meetings focus on levels of agreement. The outcome is to assess where you and your spouse agree and where you need some work to reach an agreement.
Items to be mediated are ranked, and the process of reaching an agreement begins in order of importance. Sometimes, to ease a couple into the process, easier issues are handled before more impactful issues are discussed.
These meetings are generally very productive and may run longer depending on the couple, the level of cooperation and how the process is flowing.
3. Agreement Is Reached.
Finally, based on a couple’s direction, we outline a financial structure that illustrates their agreements and objectives. If children are involved, parenting schedules or parenting plans are developed. These items are written into an agreement that both spouses sign.
By the end of this stage, an agreement should be reached on all major issues: support, division of assets and debts, custody, and visitation. We remind couples that agreements generally are not “liked” by everyone, but they are agreements that they can live with.
These agreements are drafted into a Memorandum of Understanding (MOU). This is not a legal document, but rather a statement of the intentions of the couple.
4. Attorney Involvement.
We encourage couples to use attorneys. The reason is that no mediator, not even an attorney-mediator, can give legal advice to a couple. If they did, that would be a conflict of interest and create a problem for everyone in the process – especially the couple.
Attorneys can be used in several ways. They can be consulting attorneys, people you can meet with to get answers to legal questions that are particular to you. They can also represent you if that is necessary. But the most important function is their insight into your final agreement.
We always encourage people to avoid the penny-wise-pound-foolish approach to their divorce. Mediation is far less expensive than litigation. However, there is still a cost for professional services.
In our view, that step of evaluating your final agreement is crucial to your success. An attorney can take the MOU (NON-BINDING AGREEMENT) and draft a Marital Settlement Agreement (MSA). This is the legal document that is a BINDING AGREEMENT for the couple.
The review of counsel can let each spouse know their legal rights and obligations under the agreement. Mediation friendly attorneys look at the MOU as an opportunity to educate people. They use an MOU to refine the finer points of the couple’s agreement. These attorneys do not go to court and they do not stir controversy. That is a critical point to keep in mind when choosing legal counsel.
To assist, we give the couple a list of attorneys – professionals we know who are truly mediation-friendly. We may also recommend, if appropriate, converting the case to a collaborative mediation case. In either situation, each person hires their own separate counsel. These are limited scope representation for the purpose of providing legal advice on their individual situation.
In a collaborative divorce, you and your spouse each retain lawyers who are trained to work cooperatively and agree to settle your case. Each of you has a lawyer, but the work is done in cooperation.
The agreement is presented to each attorney for review and comment. Sometimes this brings up issues for further mediation, but usually, counsel advises the client of their situation, what the agreement means and how it can be implemented.
Once an agreement is reached, either a Memorandum of Understanding (MOU) or a Marital Settlement Agreement (MSA) is drafted. It’s then reviewed by each spouse and their attorney. Once completed, it’s signed and filed with the courts.
WHAT DOES MEDIATION COST?
Cost is a difficult question. Mediators are hired for their ability to help couples resolve conflict and help couples work through complex matters. The more conflict in the situation and the deeper the complexity of the issues, the more that mediation will cost.
It is our experience in our work with couples that an average mediation may cost between $3,000 and $15,000. Your mediation may be more or less than this, depending on the difficulty of the issues being dealt with and the time you are willing devote to work on issues together. These fees do not include the cost of separate legal consultations, drafting of the final Marital Settlement Agreement (MSA) or any other incidental costs that couples may have overlooked such as court filing fees, selling assets, tax issues that arise from transactions, or the costs of therapy as people move forward. Our fee does include the cost of drafting a detailed Memorandum of Understanding (MOU). It is our experience that a well-crafted MOU can reduce the cost of legal counsel drafting the MSA.
This is why we note that you are in control of many of the costs. If the conflict is worth the cost of delays and extra time, then you will pay for that time. However, when couples have had One Last Look™, we find that they are more prepared for the mediation process, recognizing they have an interest in moving forward.
Why Mediation Is Successful
Less Expensive: Mediation can cost much less than a court trial or hearings, where divorce attorneys argue the same issues at a price tag of $350-$1,000 an hour, depending on staff. You may be able to resolve these issues in mediation for a lot less.
Agreement You Create: Fair, just, equal are all poor words in divorce. Mediation lets you work toward solutions based on what YOU believe works for your situation, rather than having an impersonal legal system impose solutions on you.
Control: You and your spouse control the process, not a court of law.
Confidential: The mediation process is confidential, with no public record of what goes on in your sessions. Court records in contested divorces are generally accessible to the public. That can include all your financial records.
Legal Counsel: You can still have a lawyer give you legal advice if you wish. The difference is they enter the picture at your direction. This can help preserve your financial assets.
Long-Term Benefits: The mediation process, if used well, can improve communication between you and your spouse, helping you to avoid future conflict.
Mediation is not therapy: Mediation is not designed to save a marriage—that’s the work of skilled therapists. But we often work in tandem with a therapist, who provides support and understanding while we offer information and help you plan your move forward.
Mediation Opens Doors: Divorce mediation opens the door to educate you about your options, opportunities, and possible outcomes. It is a place for both of you to gain that critical information needed to weigh your options before or in the middle of your chosen path. With the help of legal and mental health advisors, you gain insight into the realities of divorce.
Reaching Tough Decisions: Divorce mediation allows you to reach solutions for the important things that must be decided: child custody, support, and dividing property. YOU have the power of choice at all times to make a deal, agree in part, or litigate the areas you cannot agree on. Litigation is always an option if it is absolutely needed.
Neutral, Private, and Open-Minded: Divorce mediation is 100% private and confidential. As a neutral third party, we do not represent one person over the other, but we do monitor the balance of power to keep both parties on the same level playing field. Think of us as Switzerland - a neutral country that doesn’t take sides.
Children Are Paramount: Your family isn’t breaking; it’s changing. We help you understand how to keep children from being victims of a painful adult-driven process.
WHEN IS DIVORCE MEDIATION NOT RECOMMENDED?
There are differences of opinions on this topic. Some mediators thrive on high conflict, and others do not. From our perspective, it is not a matter of the mediator’s ability to handle conflict. It is a question of how the couple handles conflict within a negotiation.
Denial: If both parties don’t agree the marriage must end, the mediation process becomes an attempt to resolve the issues of the marriage instead of agreeing on the issues of divorce.
Hiding Assets: Full disclosure of the couple’s income, expenses, assets, and liabilities is critical. If you suspect your spouse won’t be open and honest about your finances, a forensic accountant may be employed to research the issues presented. However, that is a cost you both will need to agree to. Likewise, the person doing that work requires mutual consent. If there is no agreement, that may be an issue requiring litigation.
Alcohol or Drug Addiction: Sadly, addiction is a leading cause of divorce in the U.S. Equally tragic is the way addiction impairs judgment and reason. If your spouse has an addiction, it may be impossible for them to compromise effectively, even with the help of a skilled mediator. Legal counsel for the impaired person is one option. However, a court may be a path that imposes a level of “sobriety” and possible treatment during the divorce process.
Domestic Violence: If there is domestic violence (physical or mental) in your relationship towards you or your children, divorce mediation is far less likely to succeed. If you’re abused or seriously intimidated by your spouse, you can’t be an effective advocate for yourself. Legal counsel may help in the mediation. There may also be a rule for the victim-spouse to leave the meeting ahead of the other person, allowing the victim-spouse time to get to a safe location. The use of restraining orders, based on legal advice from an attorney, is useful in these cases. The court may also be an option forward.