What to expect in Mediation

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Oct 27, 2020 | Uncategorized

Mediation is a resolution process recognized by the courts as an effective and rewarding alternative to litigation. Mediation is different than binding arbitration. Arbitration is allowing a neutral third party, often a judge or a lawyer, to decide a conflict with no alternative to litigation. Litigation is allowing the courts to decide the outcome of your conflict. By nature of their training, attorneys seek to represent the best interest of their clients. Thus, when a husband and wife both obtain attorneys, each one seeks to represent his or her best interest. This can quickly lead to an adversarial relationship and a costly divorce.

The average cost of a traditional divorce is $50,000 if the court is involved. Even if you work things out, the cost is usually $10,000 at a minimum. Bitter and expensive divorce proceedings can leave both partners with scars that take years to heal. If children are involved, it becomes increasingly vital for parents to find common ground. The children can suffer the most from a divorce.

Mediation is a totally voluntary alternative dispute resolution process involving both parties with a neutral third party – a mediator. Mediation is client-driven. The mediator is your facilitator. An experienced mediator will draw out options, seek to discover important issues, and work through emotions to create a peaceful solution. The purpose and benefit of mediation is to avoid adversarial relationships and create a peaceful agreement in a difficult time of life. Open Space Mediation uses a collaborative approach, allowing the couple access to professionals in finance, counseling, and law, if necessary. Mediation is almost always less expensive than involving attorneys in a divorce process.

When the mediation process is complete, the couple receives a Mediation Agreement. The couple can choose to submit the agreement on their own or use either a paralegal service or a collaborative attorney to file their paperwork. The couple must use the proper forms and terminology required by the court of the county in which they file.

A simple divorce mediation often can be completed within 2 – 6 hours (no children involved), or 6 – 10 hours (with children). This works out to be less than 30% of the average retainer of one attorney. Both husband and wife each need an attorney in a traditional divorce. 

A divorce can be mediated in several sessions, depending on the range of difficulties. Each session generally lasts about 2 hours.

You can find many of the forms we will be using in these sessions on our website. It is helpful to download these, print them, and work on as much as you can outside of the mediation sessions – it will help the sessions move along more expeditiously. An example of what the process might look like:

First Session: Introductions

  1. Introductions
  2. An explanation of mediation with time for questions and answers.
  3. Signing the Mediation Agreement.
  4. Covering the ground rules of the Mediation Process.
  5. Client Intake Forms taken
  6. The mediation begins with any agreements made up until this point.
  7. Homework and the agenda for the next session is established. Worksheets are provided to assist in preparation of the Parenting Plan.

Second Session: The Parenting Plan

  1. We begin with the Parenting Plan and the visitation of children for each spouse. If couples come prepared, often one session is sufficient to cover the Parenting Plan.
  2. Parenting Plan areas include:
    • Custody (revolves around decision-making of the major areas of religious training, elective medical care and education.
    • Weekly, summer and holiday schedule of visitation
    • .If children are involved, the mediator may desire their input and voice in the process
  1. Other parenting concerns. If there is considerable disagreement on a number of topics, then additional sessions may be necessary.
  2. Homework is assigned for the settlement of assets and debts along with Cash Flow Budgets.
  3. Worksheets are provided.

Third Session: The Financial Settlement:

A Certified Divorce Financial Analyst is sometimes consulted if financial settlements are complicated and entangled. The Financial Analyst will supply you factual information on asset distribution as well as fiscal forecasting.

The mediator assists with disagreements or impasse over assets. Personal property with emotional attachment can be the most difficult for couples to divide.

Depending on the issues and complexity of assets, more than one session may be needed. Couples with straightforward and minimal assets can usually accomplish settlement quickly (within one session).

Areas of Financial Settlement:

  • Assets – autos, banking, investments, retirement, stocks, real estate, etc.
  • Debts – mortgages, credit card, student loans, etc.
  • Parents – insurance, out of pocket expenses, college, educational costs, etc.
  • Budgets and cash flow are important elements surrounding finances. Each party must demonstrate positive cash flow going forward. (Worksheets can be provided.)
  • Assets such as retirement plans and a 401ks need special legal work to divide (QDRO).
  • Spousal Support: issues of spousal support can be very complicated, and Open Space Mediation recommends consulting with a certified divorce financial analyst to help determining what is best for each couple. However, you can download the Family Law Software, which provides a support and maintenance calculator through the Colorado Child Support software application.  Download the calculator here. This software can be used to calculate maintenance and to produce electronic, printable child support worksheets.

If couples have come to agreement on all issues, a Mediation Settlement Agreement is drafted and reviewed by both parties. The Mediation Settlement Agreement is a simple, complete compilation of all agreements reached necessary for a divorce. Parties have the choice of self-submission, use of a paralegal service, or a collaborative attorney. A physical meeting may not be necessary for this step.  

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