The Financials of Divorce

THE MEDIATOR:      

The Mediator remains neutral, non-judgemental, compassionate and unbiased while listening to each spouse.  The Mediator creates a safe space for the couple to meet; emotional or psychological intimidation is not allowed; physical abuse is reported.  Hurt and anger are valid emotions; how they are expressed are within limits defined by the Mediator.  While directing sessions, the Mediator requires each spouse to treat the other with civility, fairness, and equal time to speak.  The Mediator can help the separating or divorcing couple find their voices so each can express themselves and be heard on a more equal basis.   The Mediator teaches and applies several different techniques to promote productive and forward-looking conversations between the spouses, both in and out of session.   For a more detailed presentation on what Family, Separation & Divorce Mediators are all about, please visit the Mediation Links to your right.  I suggest starting at Mediate.com.  MACRO is a state government site and MPME promotes Mediator excellence.      

The goal of the Financial Neutral in the Divorce Mediation process is to Mediate with both spouses in facilitating a negotiated settlement.  Transparency, including financial, is agreed upon by each spouse at the onset and literally drives this process.  Mediation does not use the subpoena, formal Discovery, or Deposition.  We, as Mediators, ask the couple to provide the information needed so that we can do our jobs, no more and no less.  Given this information, the Financial Neutral works with the couple to evaluate their Assets & Liabilities, Income & Expenses, Budget, and any suggested Property Settlement.  A formal analysis is created to include various forward looking Settlement scenarios and generate the required Financial Affidavits.  The Financial Neutral does not have power to impose any solution or decision; the parties retain ultimate control over the outcome. The terms of the financial agreements are limited only by the interests and creativity of the parties and the neutrals.       

The parties and their Mediator will set the ground rules through agreement and cooperation to profoundly affect the order of the proceedings, the parties’ collective and individual analyses, and the general dynamic of the settlement discussion.  Diana Mercer, Attorney-Mediator offers this video to better explain the Mediation process.  (Produced by the Foundation for Better Living, Copyright © 2006.  Reproduced here with permission.)      

For reality videos and further information, please be sure to visit Diana’s new blog site.  Be sure to scroll down to her SAFETY video; it’s a must see.      

I.  Facilitative Mediation       

Facilitative Mediation is a process in which outcome control remains almost entirely in the hands of the parties and their legal counsel. The mediator restores communication and helps to create options for resolution by:      

• ensuring that all relevant information is exchanged and heard by the parties, or confirms that there is a good reason why it isn’t being exchanged
• providing parties the ability to vent
• coaching negotiators on next moves
• helping parties invent settlement options
• transmitting offers and demands
• working to overcome potential impasses

II.  Evaluative Mediation      

Evaluative Mediation occurs when the Mediator creates more structure and injects his or her own view or prediction of the trial outcome.  Evaluative Mediation is often used for more difficult cases, not necessarily more complex cases, where the gap between the parties is large, the issues perhaps somewhat more complex and the stakes high. The Mediator allows the parties to test the reality of their predicted outcomes by:      

• working to thoroughly understand the parties’ factual and legal arguments
• providing feedback on the relative merits of claims and defenses
• offering his or her prediction of the outcome in court
• in some circumstances, recommending settlement ranges

Stephen Erickson, JD speaks to Mediation as Creating Separate Futures, while the adversarial process keeps focus on the Past.  The adversarial process, and as a system, prevents people from moving forward with the rest of their lives and the lives of their children.  Steve Erickson is the Co-Founder of the Erickson Mediation Institute in Minneapolis, MN.  He received the Bush Leadership Felowship (1979), and is the Co-Founder of The Academy of Family Mediators.  www.ericksonmediation.com  (Copyright © Mediate.com.  Reproduced here with permission.)      

In Conclusion: We can define Mediation as the process by which a skilled, neutral third-party (the Mediator) manages the husband-wife in direct face-to-face negotiations of issues between conflicting parties to effectuate an agreement or conciliation of their child-related, support and property disputes.  In Mediation, even if the wife and husband each have lawyers to advise them on their legal rights, the parties most often negotiate without the presence of their lawyers.  Together the couple makes decisions about their children, personal finances and property, to come to an agreement that each person can live with.  The parties themselves, through consultation with their attorneys, or other legal information sources, financial and/or mental health professionals, as needed, discuss, unravel facts and figures, negotiate and most often, work out the problems presented by a separation or divorce.  The end result is for the Mediator to draft, according to the agreed upon wishes of the divorcing parties, a Memorandum of Understanding (MOU), Elements of Understanding, or Separation Agreement.  This agreement includes the Terms & Conditions of the Separation or Divorce and the Property Settlement that can be presented to their respective legal counsel.  When children are involved a Parenting Plan is included.  At the request of the divorcing couple, forward-looking financial scenarios are presented.