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Informative Mediation: A New Model for Tough Economic Times
Some couples going through a divorce are rational, intelligent, honorable, generous and strongly focused on trying to create the best possible futures for their children as a two-home family. In some cases, even where there has been adultery and betrayal, and even where one of the parties has struggled with depression or substance abuse, some individuals don't hate each other just because they are getting a divorce.
There do exist individuals who face the restructuring of their lives and family with honor and integrity. There do exist individuals who wish to exemplify for their children, by example, how to deal with the sadness and tragedy life can offer at times. There do exist individuals who understand that divorce, as any adverse circumstance, can bring out either the best or the worst in a person. There do exist individuals who rise to the challenge of doing what is right, given the circumstances, for the family.
Not everyone distrusts or has reason to distrust his or her spouse in a divorce. Not everyone needs an advocate to actively and adversarially negotiate, but instead can use the attorney in his or her corner for advice, for information and for document reviews. Not everyone needs to pay for a two-attorney collaborative process. Not everyone wants to duplicate the costs and effort in obtaining the assistance of experts "for each side."
Summary of the Informative Mediation Process
Many potential divorce clients know they will not go to court, and wish to settle their cases amicably. However, there may be some issues to resolve, such as: marital and separate components of assets to be teased out, perhaps earnings on those separate assets to be calculated, stock options to be valued, properties to be appraised, some haggling over an amount and duration for alimony, a custodial schedule to be discussed and worked out and child support to be calculated. Perhaps even a business or professional practice to be valued. Some of these individuals merely need guidance.
When a prospective client calls the office, the first and most crucial step is for the experienced paralegal to discuss The Four Ways of Divorce with that person, to determine whether he or she needs to stand up for himself or herself through litigation, whether the process must be an adversarial negotiation, whether the client and his or her spouse may be good candidates for mediation, or whether the client and his or her spouse may truly both want to settle amicably out of court, but one or both of the parties needs an advocate to give voice to his or her concerns through collaboration.
Questions must be asked regarding feelings of safety, the ability to discuss concerns on an equal basis, any previous proceedings involving physical abuse, and whether there are any mental health or substance abuse issues. While no one of the above concerns per se rules out mediation, the mediator must have the experience and expertise to properly conduct a mediation involving any such circumstances. If questions arise related to an individual's ability to meaningfully participate in mediation, collaboration may be an option for those who would have an even more difficult time handling the rigors of litigation.
The first individual to discuss the process with the paralegal is told to ask his or her spouse to also call the office, so the same information can be conveyed, and so there is no perception that the firm somehow has the interests of the first person at heart. During these calls with the paralegal, the paralegal merely discusses how the mediation would progress, but does not ask for details of the situation, and does not convey information to the mediator, so as to avoid the creation of any bias or preconceived ideas on the mediator's part.
An initial appointment is set, blocking three hours on the calendar. The initial session is usually about two and one-half hours long. A comprehensive Topics List is sent to the clients in advance of the meeting for them to consider. A purely facilitative mediator might say that "if the clients didn't think of an issue the mediator shouldn't raise it," due to worries of "interfering with the clients' self determination." Conversely, the very purpose of Informative Mediation is specifically to let the clients know what they need to think about, such as mortgage interest deductions, any capital loss carryovers, life insurance and estate planning, the division of any flex fund benefits, the meaning and choices within boilerplate language, along with the usual basic concerns such as custody, visitation, support and the division of retirement and other marital assets. The clients are then free to decide themselves how they wish to resolve these important matters, with the assistance of the mediator.
The more matters the clients can discuss and agree upon together, and the more prepared they are, the less time-consuming (costly) the mediation process will be. The clients are each told that if, however, discussion of any hot button items causes discord, they should save discussion of those matters for the mediation sessions, and in any case, to never discuss substantive issues in front of their children.
In the reception area the clients will each fill out Intake Sheets which include screening questions. Once these are completed, the paralegal will bring those sheets back to the mediator to review. The mediator reviews this information as the clients are given and review the Agreement to Mediate, while still in the reception area. If any concerns arise as a result of the mediator's review of the written screening questions, the mediator must address them. If the paralegal is knowledgeable and spoke in advance to both clients, concerns will rarely arise once the clients are in the office. The mediator will then bring the clients (and drinks for them) into the room to begin the process. The session may be conducted in the mediator's office with the mediator behind his or her desk, or at a large table.
Once the necessary information has been gathered, including capital gains tax consequences such as for the sale of an investment property, or the tax consequences relating to the sale of the former marital home more than three years after the separation and equity paid out to each, discussion is had over the simple and the difficult topics. Much of the Topics List will often be easily disposed of, such as who will provide health insurance and for how long.
In other areas, the number of choices for resolution may be limited, and after brief discussion agreement will be reached. These areas may include topics such as the division of unreimbursed medical expenses for minor children, and the distribution of the household furnishings.
Then the real work will be done as the mediator calls upon his or her dispute resolution abilities, obtained perhaps through coursework, certification and experience, to assist the parties in reaching agreement in the more difficult areas.
The purpose of this article is to describe the Informative Mediation process, and not to address the ways in which mediators are able to bring clients to resolution. That topic is not addressed herein. I will note, however, that individuals who truly wish to resolve their divorce through nonadversarial mediation will find a way to do so, especially if guided by a competent mediator.
Interim notes may perhaps have been made during the sessions regarding the resolution of discrete subjects, but adjustments may have occurred over the sessions. Once all is resolved, a final session will be devoted to clarifying the agreements reached, and the mediator will make note of these decisions. Some mediators prepare a sort of a "rolling draft" of an Agreement, and update that Agreement after each session, along with billing the clients for the preparation of notes. It may not, however, be necessary to impose such costs upon the clients. Instead, a deposit may simply be requested for the drafting and preparation of the Agreement once almost all, if not all issues have been resolved.
For most topics the mediator's notes need not be lengthy, as the notes will probably refer to certain previously drafted options set forth in the lengthy template of the attorney's form model Agreement. There are only so many ways to describe, for example, the division of extracurricular expenses for the children, and whether that division is aspirational or enforceable.
However, whatever rough notes the mediator has prepared should not be given to the clients, nor to any attorneys down the road should the mediation fail, in order to protect the confidentiality and integrity of this model where attorneys are not directly involved in the mediation process itself. This is important because individuals often take and should feel free to take conciliatory positions in mediation that they would not take in an adversarial process, and should not fear that their words could be used against them later on.
Boilerplate provisions are important. That is why such provisions are included in agreements of like type.
The clients should know what provisions such as "Waiver of Equitable Distribution" or "Incorporation of Agreement" mean. A reconciliation paragraph should be discussed, as should whether the clients wish to include a Waiver of Estate provision or a Right to Inherit provision. Procedures for future modification should be explained, regarding either modification of the Agreement, or modification of the court order incorporating the Agreement. Whether or not the Agreement should include provisions for attorney's fees for the divorce and for any post-divorce modification proceedings should also be addressed. Boilerplate does not mean unimportant, and it should not be assumed that the same language is appropriate for every Agreement.
During the process, discussion will be had regarding which client will file the actual divorce case, and how the attorneys' fees will be paid. The mediator may have another attorney on his or her team in a different law firm willing to file the divorce case at a lower rate, due to the volume of the referrals.
When the court papers are issued after a divorce suit is filed, terms such as "Summons," "twenty-one day time limit," "default judgment," "such other and further relief," "Acceptance of Service/Waiver of Notice," "deposition," "ore tenus hearing" and "20-60.3" will pop up. Future concerns of the clients' should be alleviated by an explanation of what is to come, along with explanation of the mechanics of how any retirement order will be submitted for entry and then sent to the administering entity for implementation.
The initial draft should be prepared from a standard form each time, and not from Agreements prepared for other clients, so as to avoid tech savvy clients from "mining" the document and discovering the identities of any of the mediator's other clients. The first names of the clients may be used instead of "Husband" and "Wife," and the term "we" may be used instead of "the parties." Much of the "whereas" and "heretofore stated" terminology can be dispensed with.
The Agreement should not be sent to the clients as a Word document or other attachment, so as to avoid any temptation on the part of a client to alter the Agreement. The document should be scanned and sent as an attachment which can not be readily revised, such as a .pdf or .tif attachment, with stern orders not to make any changes. The clients should also be instructed to verify that no changes were made before signing.
Usually the finalized Mediated Agreement is complete once drafted, and could be signed by the clients. Four copies should ultimately be signed, so that each client has a fully endorsed copy, one copy can be used for the divorce suit, and one copy should be sent to the mediator for his or her files.
Occasionally, minor bits of information are still missing once the initial draft of the Agreement is prepared, such as the beneficiary amount on an existing term life insurance policy, or one last number to be ascertained. The mediator will have explained that these small items can be discussed by the clients, and one client can email the missing information to the mediator, copying the other client, so as to avoid the mediator entering into a dialogue with just one client. A finalized Agreement can then be sent out.
If the clients wish to suggest revisions, any such revisions should only be made on the mediator's hard drive version of the Agreement. It is not unheard of for the mediator to receive from the clients revisions tracked on a document which had been sent as a scanned attachment, but any revised document should be prepared entirely by the mediator, and not by "accepting" any changes "tracked" on a client's copy.
When the final Agreement is sent to the clients, the letter accompanying the Agreement will state that each client should feel free to have the Agreement reviewed by an individual attorney on his or her own behalf. If the clients do so, and if they each receive no new legal information that they did not receive during the course of the mediation, the Informative Mediator has done his or her job.
A copy of the fully endorsed Agreement should always be requested from the clients, so the mediator can verify that the clients did not alter the Agreement on their own. After receipt of the signed Agreement, letters closing the file can be sent.
However, if the Agreement contained language regarding the division of retirement assets, the Informative Mediator may then prepare language for the orders which effectuate the terms of that Agreement. Military and other retirement sections of the Agreement may have been drafted by a retirement benefits specialists after a conference call with the clients. That individual may have emailed the language regarding the retirement benefits to the mediator to be inserted into the Mediated Agreement.
That same individual can then prepare the language for the orders, transmittal letters and military DD forms, under the supervision of the attorney mediator, once the Agreement is signed. Or the attorney mediator can prepare the documents and have QDROs preapproved by the Plan Administrators. These orders and documents are then emailed to the clients, who can then forward them on to the divorce attorney to finalize.
Once all work is completed, the clients should each be informed in writing that their file is closed.
The process of Informative Mediation well serves clients who wish to resolve the issues regarding the dissolution of their marriages amicably, respectfully and efficiently. Informative Mediation is best conducted by qualified practicing attorney litigators, with highly trained support staff and well-developed teams of supporting specialists familiar with the process. Through Informative Mediation, rational and respectful individuals can privately create specialized and detailed futures for their two-home families, at less overall cost.
Although the above mainly address the use of Informative Mediation to resolve divorce issues, the process of Informative Mediation lends itself well to any other area of dispute, and not only to the mediation of family disputes.
The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child," family abuse, and "other factors as the court deems necessary and proper to the determination."
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