Mediation is a voluntary dispute resolution method that may be used in divorce cases either at the outset of a case or at any stage of a case prior to trial. A divorce mediator is a trained neutral who works directly with the parties to reach agreement. Divorcing spouses may retain an individual mediator to conduct a series of mediation sessions directly with the parties without attorneys present or to assist in their attorney-negotiated settlement that is already underway but has reached impasse.
- Without Attorneys Present: Mediation occurs in open sessions where the parties together collect the relevant information and negotiate terms. The mediator provides legal process and background information without providing legal advice to either party. Once the parties have reached an agreement, the Mediator will draft a formal Separation Agreement. Typically each party will additionally and separately retain a divorce attorney, referred to as Review Counsel, to advise and discuss individual concerns and conduct a review of the Separation Agreement.
- With Attorneys Present: A mediator may also be retained to conduct a structured settlement process at any phase of a divorce case when each party has individual representation. The collection of information takes place with a formal or informal exchange of discovery through the individual attorneys. The attorneys prepare background information and proposals containing relevant historical information, current financial data and a settlement proposal. Once an agreement has been reached, the attorneys then draft the Separation Agreement and advise their clients on its terms and provisions.
Step One: Narrow the Issues for Resolution
- Often it is only one, two, maybe three issues that become obstacles to a global settlement. Identify them generally and be ready to explain and/or actively listen to the specific issue to efficiently use the mediator’s time and skills to break the impasse.
- If you are working directly with a mediator without attorneys present, make sure you have an Agenda of items to focus the session.
Step Two: Bring and Have Access to Accurate Data
- At a minimum, complete and up-to-date financial data is necessary to proceed at mediation. The mediator must be provided with an accurate picture of each party’s income, expenses, assets and liabilities to properly evaluate, formulate and elicit appropriate options.
- Bring or have available substantiating information such as paystubs, pension plan benefit documents and tax returns to address potential implementation issues in the moment for better analysis.
Step Three: Do Not Attach to a Specific Outcome
- There is a strong tendency in the process of divorce to become attached to a particular preferred outcome and to view any departure from it as giving in or losing. It is important not to do this in order to remain flexible and open to other options in the process of negotiation.
- Beware of your own negative emotional reaction and triggers which can block the ability to resolve. Having an attorney present or in the background as coaching counsel to explain the complexities and help manage the conflict can be extremely helpful during a highly emotional time.
The firm of Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, concentrates in family law and divorce. We offer all aspects of mediation services including that of review or coaching counsel, attorney-assisted mediation, and trained mediators to work directly with you throughout the divorce process.
