What is the typical mediation process like?
The Introduction Phase:
This takes place during the initial phone consultation and the first session. This phase of the mediation process is for you, your spouse, and the mediator to become familiar with one another. You and your spouse will have the opportunity to provide background information about the issues that are being disputed as well as trying to bring the mediator into the world you have been dealing with for the past few months. The more educated the mediator is about your situation, the better he or she will be able to assess the situation and apply appropriate mediation practices to help you reach your agreement.
During this phase, the mediator will also address how the mediation process works. Every mediator has his or her own techniques, so pay special attention to make sure your mediator is right for you. It is not uncommon for spouses to discover during this phase that a certain mediator is not adequate for their circumstances.
The mediator will also devote some time to the mediation agreement and how billing will take place. The agreement is the best way for you, your spouse and the mediator to make sure everyone involved is on the same page before the next session.
Collecting Information Phase:
This phase may last a few sessions depending on how complicated your issues are or how well they are expressed. We refer to collecting information as both you informing the mediator of the disputed issues as well as factual information like earnings, assets, insurance, parental roles, etc.
Most mediators will have an information intake form (much like the "Divorce & Financial Checklist" provided in this book). Completing as much of this outside of the mediation session will save you time and money. There is no need for your mediator to help you find your insurance policy number or your pay stub information.
During and after the information collection phase, the mediator will ask a lot of questions in order to make sure his or her perception of the situation is correct. He or she may seem to be getting rather personal, which is a good thing, because otherwise he or she would not be able to help you. The mediator will talk a lot about how the law views certain issues you are facing. This does not mean you need to agree on certain issues because the court would say this or do that, but rather it is a very valuable piece of information that will be an important factor in the decision making process.
The goal of mediation is for you and your spouse to reach an agreement you are comfortable and happy with. What the court would rule, or do under certain circumstances is important for you to feel comfortable with your decisions. This is why the legal perspective that the mediator brings forth is absolutely invaluable.
The Classification Phase:
This phase of the process is when the mediator gets you to reveal your wants, needs and wishes. He or she will ask a lot of questions and make as many notes about what you want and why you want it.
You will find that both you and your spouse have similar desires. If you did not you probably would not have needed the services of a mediator in the first place. During this phase is not the time to dispute each other’s desires. It is important that each of you allow the other to express him or herself to the mediator in an uninterrupted atmosphere.
The Negotiation Phase:
During this phase you and your spouse will have the opportunity to talk things out with close supervision of the mediator. The mediator will act like a referee, making sure things stay focused and the ethics of the mediation process are upheld. Arguing will not be tolerated. Civil discussion and good communication are the primary objectives to achieve during this phase.
The discussions should be focused on reaching a settlement. The first and foremost important factor to evaluate is… What are the options? You may realize that what you initially wanted is no longer an option. This phase will last as long as it takes until you and your spouse arrive at some sort of settlement. During this phase mediation clients typically discover that settling a divorce is nothing more than a give and take arrangement.
Once you and your spouse have come to agreement, it is time to put everything in writing within your Marital Settlement Agreement. The Marital Settlement Agreement is discussed in depth later in this book.
As a rule of thumb most mediators will suggest that you have separate lawyers review the first draft of the settlement agreement (the first draft is typically drafted by the mediator). Lawyers are better equipped to actually draft the final agreement so it adheres to court rules and is accepted by the judge as the final terms of your divorce. One of the lawyers will be hired to draft the final agreement as well as any other paper work necessary to prepare for the divorce to be granted. It has become quite popular to do the filing procedure yourself, so we have included a basic overview of the filing procedure later in this book. If you do decide to have a lawyer file all your paperwork, the chapter will still be beneficial in understanding the time-line of the filing process.