For couples in the process of getting divorced, mediation is often promoted as the preferred method to save time, money, and reach the least acrimonious resolutions to disputes. However, the effectiveness of mediation hinges on several important factors that, when not present, can make the proceeding a complete waste of time and prolong a process that is stressful under any circumstance.
The process of mediation involves a third party, neutral facilitator who assists disputing parties solve their own conflict.
Under certain circumstances, mediation is not an appropriate conflict resolution process.
For couples with a history of violence, spousal abuse, child abuse, significant power imbalances, or one party is not willing or competent to participate, mediation is not recommended since the process can aggravate subordination. Minnesota Statute 518.619, subd. 2 provides an example of how these exceptions are embedded in mediation laws.
In these instances, attorneys and the court system can work to ensure a fair and equitable resolution for both parties.
Participants need to be properly prepared to engage in the mediation process.
An article by Justin Terch published in the February 2012 issue of Bench&Bar argues that the effectiveness of mediation often depends on how well participants are prepared. He explains that participants should know up front what is nonnegotiable, for example a parent who will refuse to accept anything less than 50 percent parenting time or a custodial parent who wants to remain in the marital home.
Mediating parties should also have a good idea of areas on which they are willing to compromise. For instance, if it doesn’t really matter if one keeps the downstairsfurniture or not or which weeknight ends up being parenting time for the other parent. Terch says that when parties clarify these areas ahead of time, it results in more productive negotiations and more successful resolutions.
At Tentinger Law Firm, we advise clients to consider their goals in the following areas:
→ Parenting time and what the ideal schedule will look like
→ Parenting logistics: attending child activities, child health care, holidays,
vacation, child’s college, etc.
→ What assets are involved and how should they be divided
→ Any assets that are considered to be nonmarital
→ Monthly expenses versus monthly income
When divorcing couples come to mediation fully prepared to answer the above questions, they are more likely to reach an outcome they can live with.
The Mediator needs to be prepared with the information relevant to your case.
The issues that need to be resolved are different for every case and depend on the circumstances of the parties. For example, in order for a Mediator to assist parties in the division of assets, the Mediator needs to have an accurate accounting of what those assets are. The mediator needs to know the details of each party’s employment and salary, what each party’s monthly budget looks like, the value of any property owned, total debt owed, whether there are retirement funds, pension plans, life insurance policies. The list can be extensive and the best way to gather all the necessary information is through the process of Discovery.
Legal Discovery is a category of procedural devices that require a party to disclose information that is essential for the preparation of the requesting party’s case and that the other party alone knows or possesses.
Hiring an attorney to conduct formal Discovery can ensure that all the facts of an issue are presented, resulting in more equitable resolutions. In a recent divorce case, it was revealed that one party had taken $52,000 from an account and had given it to a friend to keep until after the divorce. This information was brought to light only after formal Discovery was served upon the spouse to produce all bank account records.
The Mediator needs to be a skilled communicator and well versed in family law.
It is the Mediator’s job to inform participants as to how the process works and what the Mediator’s role will be. One of the reasons mediation can reduce divorce litigation is that the parties retain control over the dispute and its outcome. Mediation emphasizes communication, collaboration, and problem solving, but lack of these skills is often part of what has brought couples to mediation in the first place. So, it is up to the Mediator to referee the process and ensure fairness to both parties. An effective Mediator will engage in the following techniques:
√ Recognize quickly if one or both parties is unwilling to compromise and therefore mediation would be an ineffective resolution process.
√ Set an issue agenda and keep the process on track.
√ Reframe issues of conflict into solvable problems (refocusing “you never pick up the kids on time when it’s your weekend” into what is a workable drop off and pick up schedule that will work for both parties).
√ Facilitate brainstorming, the development of options, and possible alternatives.
√ Maintain participants’ focus on the problems and not who’s right or wrong.
√ Reinforce points of agreement and document agreements that are reached.
√ Provide a reality check for nonnegotiable issues that are not realistic. A skilled Mediator should be able to advise participants if the court would be likely to grant spousal maintenance, grant sole physical child custody, or allow a party to keep the marital home AND the 401K.
Attorney representation during mediation can make the process more effective.
The issue of being able to provide a reality check for divorce demands is important as it can end an impasse or save a mediation from being unsuccessful. Having an attorney present during the mediation process can ensure that both parties understand how to calculate the appropriate level of child support that might be applicable or whether spousal maintenance would be an issue. An attorney can advise on current child custody laws and how the Court will likely approach property or asset division.
Parties considering mediation for their marriage dissolution who chose to forgo attorney representation should at the very least determine if a prospective mediator is skilled in the areas discussed in this blog.
Attorney Jay Tentinger is an experienced family law attorney who can assist in finding a skilled mediator and prepare clients for the mediation process, including the use of Discovery.