Divorce mediation is a process of dissolving the
marriage in a non adversarial way. The framework provides you
with the opportunity to negotiate your own settlement on the
assumption that the decision to separate and/or divorce has been
made.
You may decide to consult with a lawyer at the beginning of the
mediation process to insure that you know your legal rights, even
though you will negotiate directly with your spouse in the
mediation process. You are free to consult with a lawyer at any
time during the mediation process; and you will need to have a
lawyer prepare the legal documents based on the mediation, as
more fully described below.
This is not an avenue to resolve conflicts of the past. You may
begin to understand some of those past problems in a different
light, but we will not be working to resolve them. Rather, we
shall, through the process of mutual negotiations, attempt to
define a new life with new options for each of you. To do this,
there must develop a sense of mutual respect among the three of
us.
Too often divorce is placed in a win/lose framework. Given that
situation, compromise is difficult, since it is seen as a loss. A
smart, if less than honest, tactic is OK because it means a win.
However, the result is a loss for both of you, since winning in
this situation denies a part of the other's humanity. The divorce
mediation process is designed to eliminate the win/lose
atmosphere. Since the process is mutual, you can't win at the
other's expense. Neither can you lose. You must come out of it
with a settlement acceptable to both of you and controlled by
both of you. We call that a "win/win" solution.
With control over the outcome you also experience a sense of
power over the life decisions. The important aspects of divorce
mediation are that:
You emerge from these negotiations with a new sense of dignity and a clearer sense of self and what the future holds for you.
You can place the past behind you and concentrate on the future.
My function is to assist you reach a settlement. I do not represent either of you individually. My commitment is to a settlement you can both live with. I will use my mediation skills to help you identify those areas of agreement and those substantive areas of disagreement. I will help you negotiate the substantive areas of disagreement to reach a settlement. I will also manage the conflict between you so it becomes productive rather than destructive.
In the first phase I will help you to identify the parameters
for negotiations. I will be working with you to define your
short- and long-term goals. Obviously, you have given this whole
matter considerable thought and you have many ideas on what the
ultimate settlement should include. You can "sound out"
ideas before proposing them. I can help by sharing my experience
with you on what has worked in the past for other couples and
what the norms are.
I cannot define the settlement, and I cannot impose an agreement.
My role is to assist you reach your agreement. I will not take
sides on the issues.
I am interested in the settlement as a principle, and I am
interested in you as people. I feel for your pain and want to
help you through this difficult process and help diminish this
pain. Finally, I hope to help you use these negotiations to place
the past behind you. The marriage is ending, but you have a life
ahead of you. That new life can be marred by holding onto the
anger of the separation, or the new life can be an exciting
opportunity to redefine yourself.
I'm working for and with both of you to help you reach a
settlement that permits you to concentrate on the future and the
potential it holds.
There is a typical process we will use to reach a settlement;
however, your individual needs may cause us to depart from a
strict adherence to it. During the process we will:
[] develop current and future income information
[] develop budgets
[] inventory marriage assets
[] begin to define each of your short- and long-term goals
[] define general areas of agreement
[] define substantive areas of disagreement
[] identify symbolic and emotional issues
[] work through the parenting arrangements
[] negotiate money differences
[] develop a settlement.
Sessions normally last two hours. However, we do not limit
ourselves. Rather, we attempt to complete the business scheduled
for that session.
My role as mediator is to help you retain your power over the
decision-making process that affects your lives. My focus is on
the future and helping you define new options to you.
The purpose of this guide is to assist you in defining what it
will cost for you to live separately. Obviously, your total
expenses will increase. However, in developing a budget you may
also identify areas of expenditure that can be reduced without
significantly changing your essential standards of living. In
addition, the process of budgeting helps you to develop a
rational data base from which to begin negotiations.
Budgeting is difficult for most people. Some see it as
penny-pinching, others as bookkeeping; Few of us like either of
these activities. Yet, budgeting is financial planning, which
enables us to make intelligent decisions and rational choices.
We will not try to account for every dime as we prepare your
budget. Doing so will drive you to despair. Use your checkbook
records as general guidelines to fill in the categories supplied
here. Do not try to reconstruct every expenditure. Our purpose is
to enable you to establish broad outlines, and by drawing on
experience, to project future needs, recognizing that your future
needs will be different from the past.
As part of this process, I will share some averages with you when
a particular item is way out of line with general norms. This
will enable both of you to develop budgets you can live with.
The assessment is in four parts
1. current income
2. future budgets
3. assets
4. liabilities.
The budgets deal with anticipated expenses. They will differ
for each of you depending on certain variables. For example, who
will be primarily responsible for the children?
Will one of you continue to live in the family home? Often, the
parent with prime responsibility for the child(ren) also remains
in the home. The other, therefore, needs to calculate a budget
based on an apartment rental or whatever other living arrangement
is planned. These expenses are best calculated on a monthly
basis. If your information is weekly, multiply one week's figures
by 4.3 to get a monthly figure.
The prime purpose of completing this budget information is to
provide you with a database with which to make decisions. I will
work on these with you and we are looking for broad guidelines,
not precise documentation. So, do not be overly concerned if you
can't provide a specific figure - we'll work it out together.
In many marriages, one spouse has assumed responsibility for
budgeting and handling the finances. This leaves the other
"in the dark" when it comes to preparing this database.
Doing the budgets provides both of you with the same data and
enables you to make rational decisions about your futures.
There are times when the person who has most control over the
money finds it difficult to share this information because
knowledge is often equated with power. However, if you don't
share this knowledge with your spouse now as the basis for
reaching a mutual decision, you may have to share it later with a
judge who will make a unilateral decision, thereby giving up all
of your power. By sharing all of the information now, you assure
that you will both keep and be able to exercise your power.
So, in a real sense, we are working together to provide you with
the power to make your own decisions about your own lives. That
means sharing data at this point so those decisions can be
mutual.
The Child Support Guidelines mandate that all child support be based on your actual income. It is assumed that you, as parents, will spend a specific percentage of your combined income on your children as follows:
one child 17%
two children 25%
three 29%
four 3 1%
five + 35%
The percentage is based on your gross income before deductions
less money paid for FICA (social security) in the previous year.
It is assumed that each parent is contributing the same
percentage to the children's expenses. In addition to the cash
child support, parents are expected to share in the cost of
child-care expenses incurred by the resident parent while working
and uncovered medical expenses. (You are expected to cover your
children under any employer-provided health insurance.) The ratio
for sharing these expenses is the ratio of the two incomes less
FICA.
We will start the process by reviewing the future needs as
indicated by the budgets and then we will calculate and apply the
child support guidelines. If you have a deficit following this
part of the process, closing that deficit will be a subject of
the negotiations.
As you collect all the data together, you begin to define the
parameters of any agreement. You cannot divide what you don't
have. You will begin to see that living separately costs more
than living together. Therefore, there may have to be some
reduction in the standard of living of both of you once the
separation begins.
This leads to uncertainties and a sense of insecurity in you.
That insecurity is as integral a past of these negotiations as
are the emotional issues that led to the decision to divorce.
Security will be sitting at the negotiating table with you, and
you won't be able to leave until you settle its needs.
The data you have prepared enable you to consider some of the
broad choices you need to make. Your final agreement will
probably consist of maintenance and/or child support. There are
pros and cons to each of these and to how payments should be
divided. We will also consider the possibility of changing
incomes and changes in the cost of living.
If you've been shopping lately for a new car or to replace
furniture, you Blow just how expensive these items are. If you
are just making ends meet and the washing machine breaks down for
good, no amount of wishing will get you a new one. So, think
about the cars, appliances, furniture and other high-cost items
you have that might need replacement in the next two years and
include them in the work sheet.
Marital assets (everything you have accumulated during the marriage except gifts and inheritances) need to be identified, and an equitable distribution of these must be part of a mediated settlement. By and large, inheritances and gifts to an individual are considered non-marital assets. This is an "equitable division" state, which means it may be equitable to divide property other than equally. However, the decision of how you divide the assets is up to you: you know your needs. We will work on identification of marital assets and how to divide them.
So far we have concentrated on the economic issues. But, what
about the kids? In our society people generally think about
children in three ways: 1. As chattels-"They belong to
me." "I've invested all I have in them. I see in them
my hopes for the future." 2. As weapons-"If he thinks
he's going to see them whenever he wants, he's nuts."
"If I'm paying for them, I'm going to decide who visits with
her and when I see the kids." 3. As people afraid about the
future, divided in loyalty, having feelings and needs independent
from either of you and dependent on both of you.
Most of us have a combination of these feelings and sorting out
which of the feelings are valid is difficult. The reality is that
your children need both of you and you both need the children.
You are the only parents they will ever have, and they need you
to cooperate in the future as parents. I will help you keep this
in mind as you negotiate an agreement that provides for a
parenting role for both parents in the best interests of your
children.
One family court judge has developed a Bill of Rights of Children
in Divorce Actions. Among those rights are:
Neither of you wants to put the children at a disadvantage.
You both want the best for them. However, if the children are
viewed as bargaining tools or are ignored during the
negotiations, then there is a danger of harming them.
For these reasons, it is important to determine how the children
can be involved in the decision-making process. They are entitled
to some input on the issues affecting their lives. The precise
nature of that input should be decided in the ways you make
family decisions. You would not admit a six year old to the
bargaining table as an equal. On the other hand, a sixteen year
old won't accept placidly a living arrangement that (s)he had no
role in shaping. Part of the negotiations is about how to involve
the children appropriately in those parts that have a direct
bearing on them.
There are many options open to you regarding your children. They
include:
Joint residency: In this arrangement you
continue to live in close proximity (usually within the same
school district) with the children spending part of each week or
month in each household, coming and going according to some
comfortable arrangement.
Joint parenting: Here you agree to share all
parenting decision-making even though the children live primarily
with one of you.
Single custody: The children live with one of
you who makes all the decisions with either an "open"
arrangement regarding access rights of the other parent, or you
make specific arrangements detailing when and where the other
parent has access to the children.
The joint residency arrangement might prove to be outside your
realm of expectations. But if you plan to live close by and you
can tolerate the essentially unstructured nature of this
arrangement, then you should give it serious consideration.
The important thing to remember is that you will always be
parents to your children even though you decide no longer to be
husband and wife. There are some well-written, easy-to-read, and
helpful books that address this issue.
During the divorcing process, some people feel that whatever
child contact they are granting the other parent is a concession.
Such an attitude ties a stone around that parent's neck. In
addition to normal access, each parent should consider the other
parent's obligation to care for the children. For example, if
your brother is sick in another city and you want to visit him,
the children's need to stay at home for school may interfere. If
you have a tight, carefully specified arrangement, you won't be
able to ask the other parent to care for the children for a few
days while you visit your brother.
You are both the parents, and while you may no longer be able to
share the day-today responsibility of caring for the children,
you can share the week-to-week responsibility.
Such an open arrangement also means that the children do not
become a total burden on the freedom of one parent. This
arrangement extends the parenting partnership theory of marriage
into the post-marriage relationship.
The following points should be considered in determining
parenting arrangements: the age and sex of the child, together
with the interaction and interrelationship with both parents and
siblings; the child's adjustment to home, school, and community;
the mental and physical health of all involved.
So, in planning the future, think about these points. Your
children have rights, and you have rights to frequent contact
with them, or relief from the day-to-day burdens of child
rearing. They have needs. You have aspirations for them.
How you work out the parenting issues will have a significant
impact on the emotional life of your children and their future
relationship with you as they mature.
Preparation is the key to successful negotiations. That is why we spend so much time preparing an adequate database from which to start. As we get ready to negotiate here are some good ground roles to follow:
Know Your Case and Your Rights
You should be fully aware of your rights and, if
necessary, consult with a lawyer to insure that you are. This
does not mean that a lawyer should negotiate for you. You should
define what it is you need in the settlement. Once you have a
broad idea of what you need, begin to think through why you need
it. Separate out each piece and develop in your own mind your
reasons for it.
Review the Other's Position
Having prepared your case, try to review the other's case. What
is his/her response likely to be to your proposals? What argument
is (s)he likely to advance in opposition to your proposals? What
things is (s)he likely to advance to support these claims?
Identify the Constraints
As you are thinking these points through you will also begin to
identify those external constraints that must be recognized and
factored in. For example you cannot divide more than is totally
available. You can't ask for $15,000 and expect your partner to
live on $10,000 if the total income is only $20,000. Or, if there
is only one auto, and one income producer, and the only way to
get to work is by auto, then this places a constraint on who gets
the auto. If you think these points through in preparation, you
won't be surprised in the actual negotiations.
List Your Points
List the points you want to raise in each session;
define your goals into an order of priority to help you decide
what to emphasize in the session. As you prepare for the
negotiations, the task will often seem formidable. You will worry
about not doing it correctly and many aspects of it will rekindle
anger as it touches on some of the reasons for the divorce.
THE ROLE OF THE MEDIATOR
My role at this point is to help each of you develop your case. I
do this by focusing on what is in your best interests without
regard to me other party, since the give and take must come from
each of you in negotiations.
Guidelines for Useful Behavior
There are some useful guidelines for behavior at the
meetings. I will start the discussion from areas of common
agreement, rather than from an obviously controversial area. Once
you have secured a beginning base of agreement on which to build,
you will find that subsequent favorable accommodations are more
easily reached on disputed issues.
As you reach agreements, I make a note of them, and we remove
those issues from the table. That does not mean we can't reopen
those issues later, and obviously nothing is finalized until the
actual settlement is signed.
During me talks my focus is on reaching a settlement you can both
live with. Therefore, I will always be looking for the yes and
trying to avoid reaching a premature no. However, each of you has
the right to say no to demands that are totally unacceptable to
you.
In mediation I help you to make a good effort to see the other's
point of view without losing sight of your own position. At the
same time, you should be well enough prepared to explain me
reasonableness or acceptability of your proposals. To help you do
this, I will ask you to state your proposals and then explain why
they are beneficial to the other as well as yourself.
It is often difficult to decide, and the more important the
decision, the more difficult it is to reach. One way of easing
the burden of making a heavy decision is to offer a "forced
choice" of two alternatives. Think about situations where
you can suggest two alternatives of approximately equal value. Be
careful not to offer a choice between a something and a nothing.
Always remember the goal you have set can be reached in many
ways. Be open to alternative plans or routes to your goal. Try
also to determine which goals can be "traded" for a
goal of your partner. Negotiating is the art of compromising-that
means giving and taking.
When tensions are high, as they must inevitably be in this
situation, it is important to work at minimizing them. Thus, if
you win a point in the debate or if the other concedes an item,
be gracious. Credit the other with sincerity. It will make it
easier for both of you to make other compromises.
Try to maintain your own sense of dignity. Don't plead your case.
You have invested as much in this marriage as your partner has.
Explain your position, discuss the issues, try to persuade, but
don't plead - you have rights too.
The real art of negotiating is listening. You know your spouse
very well. Listen closely for clues as to when and how
concessions are likely. Don't talk more than necessary. Many an
agreement has been lost because one person kept on talking past
the point when the other was willing to agree. Remember that you
can't give anything away when you are listening.
If you are not ready to commit yourself at any point, don't get
pressured. Say you need time to think it over. I will be watching
this point and will help you to avoid reaching a premature
decision.
Always try your best to keep the discussion problem oriented.
Don't let it become personality centered. If it does, I will try
to reorient the discussion to the issues. If that cannot be done,
we will terminate me session, since a personality centered
discussion is detrimental to problem solving.
If a session becomes too difficult, feel free to ask that we end
early. Your mediator will do that and you will be charged only
for the time actually used.
Negotiating is a systematic search for solutions that will lead
to a settlement you can both be comfortable with. It requires
patience and some measure of good will. Even at its most
successful, it cannot solve the problems that led to your
decision to separate. However, it can help you implement this
decision with less pain and with a sense of dignity and control
over the process. Hopefully, it will also help you place the past
behind you and help you focus on the future - a future you have
helped determine, rather than one defined by a settlement imposed
from the outside.
How to implement your settlement
When you have arrived at a settlement, I will prepare
your memorandum of understanding. Fish of you then take that
memorandum of understanding to your respective lawyers, who
incorporate your agreements into a legal separation agreement.
Sometimes a lawyer will suggest minor modifications to your
agreement that you feel change the intent rather than clarify an
ambiguity. If this happens, you should check with each other and
the mediator. This is important because the agreements reached in
mediation represent a total package, carefully balancing your
mutual and self interests.
If your lawyer suggests substantial changes, you should consider
the changes in the context of a continued mediation. That is, you
know what you gave and what you got in the negotiations. Weigh
the overall outcome and, if you feel the changes are warranted,
return to mediation to complete the negotiations. The more
complicated your financial situation, the more likely your
lawyers will contribute to the final structure of the memorandum
of understanding. You should not attempt to convert the
memorandum of understanding into a legal agreement without the
advice of a lawyer, since it is not intended to be legal
document.
Fees
The fee is paid at the end of each session for the
amount of time used in that session. We ask that you share in the
cost of mediation in a ratio appropriate to you. There is also a
fee of three hours time charged for drafting the memorandum of
understanding and work conducted outside of the session.
If you need to cancel a session, please call the office and
reschedule your appointment at least twenty-four hours before the
scheduled time.
Copyright 1978, 1989, 1991, John M. Haynes, PhD.
This pamphlet is provided as a public service. It contains general information and is not intended to provide legal advice; the facts involved in a specific case determining the application of the law. If you have specific questions about any matter contained in this pamphlet, you are encouraged to consult an attorney.
Reprint courtesy of John M. Hayes, Ph.D.
"The Fundamentals of Family Mediation"
Rego & Rego, Attorneys At Law, 443 Hope Street, Bristol,
Rhode Island 02809
Telephone: (401) 253-2500 Telecopier: (401) 254-0235 email:
al@rego-law.com
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