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How Spouses Can Make Voluntary and Informed Decisions in Mediation Divorce

Divorce mediation process can only work when the spouses make their own voluntary decisions, based on adequate information. In California, the Judicial Counsel disclosure forms for income and expense and for assets and debts, when supported by appropriate documentation, appraisals, evaluations, etc. as needed, provide the requisite hard data information. The mediator should inform the parties that they can obtain not only information but also advice from a variety of sources during the mediation process. Advice may come from financial professionals, e.g. regarding tax planning and projected income, or from mental health professionals, e.g. regarding the children's reaction to the divorce.

Information about the interests and needs of the parties may not be so readily identifiable. To paraphrase a famous philosopher "How do I know what I think until I say it?" Verbalization can crystalize the person's needs and interests in his own mind while informing the other party and the mediator. So the mediator's task is to encourage both parties to express their ideas freely and as clearly as possible.

Moreover, the parties should be encouraged to talk to each other directly, and to listen to the other. This may be facilitated by both parties being given a notepad, so they can note their own ideas and continue to actively listen to the ideas of the other. Initially, the mediator can ask the party to repeat what the other has just said, which serves two purposes. First, it insures that the message was accurately understood. Second, it assures the speaker that he/she is being listened to.

If one of the parties is hesitant to verbalize, there may be a reason. The mediator can take this up in a separate session. At least one separate session should be held with each spouse to insure that the spouse is satisfied that he/she is being heard, and to permit airing of an issue that he/she may be reluctant to bring up with the spouse present.

It is incumbent on the divorce mediator to inform the parties that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation. In fairness to the other party, that decision is best expressed at a scheduled mediation. The parties should be made aware that nothing requires them to reach an agreement in mediation. The family mediator's commitment shall be to the participants and the process.

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