We typically think of divorce as a conflict-driven process, but that need not be the case. Rather than hire lawyers and battle in court, couples can choose to mediate their divorce. In mediation, spouses meet individually and together over a number of sessions with a trained divorce mediator to reach an agreement on the issues at stake in the divorce – child custody, child support, property division, debt division, and spousal support. Mediation has several advantages, including reduced conflict, reduced expenses, you can move at your own pace, protect your privacy, stay out of court, and draft a more lasting and acceptable agreement.
Spending a little time preparing for mediation can put you in a much better position to get a fair outcome. Consider taking these six steps prior to starting mediation:
1. Choose your mediator wisely
There are several types of mediators, so how do you know which kind is best for you? The three most popular styles of mediation are:
- Facilitative. A facilitative mediator helps foster productive conversations and is ideal if you and your spouse tend to argue.
- Evaluative. An evaluative mediator helps explain the legal merit of each of your requests (such as your desire for sole legal custody or sole physical custody or your spouse wanting to sell the marital home).
- Transformative. A transformative mediator is more like a marriage counselor in that he or she will allow you to discuss your conflicts in a safe space with the intention of ending up with solutions.
Here are some questions that will help you choose the best mediator for your situation:
- What is your style of mediation?
- Will you meet with my spouse and me in the same room, or will you travel between two rooms?
- Do you ever hold sessions by Zoom?
- What does your availability look like? How far out are you scheduling meetings?
- Do you prepare our settlement documents?
- Who drafts, files, and processes our divorce paperwork with the Court?
- Do you take a fee deposit upfront and bill against that? If so, how much? What is your hourly rate?
- How many years have you been a divorce mediator?
- Do you also litigate? If so, how does that help us during mediation?
2. Consider hiring a lawyer to help you through the mediation process
The best lawyer to hire to help you through mediation understands the process and should also be a mediator as well. You want to hire an expert in divorce and family law who can give advice and tell you what to expect. Your attorney will explain the mediation process, listen to your goals and concerns, help strategize your position for mediation, and help you prepare your response to different scenarios. It may be a good idea to meet one or more times with your attorney before the first mediation session. Your attorney should also review the Marital Settlement Agreement and Parenting Plan before it’s signed. Remember, your mediator cannot take sides or provide you with legal advice. You need to ensure that the agreements reached clearly state your wants and needs. terms later (and if possible, estimate when).
3. Gather your financial information now
If you have access to your financial documents, start gathering them now. You can’t go into mediation prepared unless you have a good understanding of what you have and when it was acquired. For example, if you purchased a home together but your parents or grandparents gifted you (and not you and your wife jointly) the down payment, you will likely want to try and get that money back. You will want to prove that with some sort of documentation or closing statement.
In the best-case scenario, you and your spouse will work together to compile documents and complete a joint Statement of Property for the mediator. The following is an abbreviated list of some of the documents you may want to gather.
- Your last three years’ federal and state income tax returns
- Your last three months of pay stubs
- Your last three years W-2 forms and/or 1099 forms
- Partnerships and other business interest documents including any recent valuations
- Real estate appraisals
- Kelley Blue Book or Carmax value on cars and trucks
- Your last three months’ savings, checking, money market, and certificate of deposit account statements
- Your last three months’ non-retirement investment statements for stocks, bonds, secured notes, and mutual funds
- Executive compensation records, including stock options, restricted stock units, or other executive comps
- Your current retirement account and pension statements
- Your current annuities, IRAs, and deferred compensation records
- The current cash surrender value of any whole or universal life insurance policies
- Your current mortgage statement and auto loan statement
- Your last three months’ credit card statements
- Evidence of separate property contributions to assets
- Health insurance cost information
4. Have an open mind and listen carefully
Prepare yourself that your spouse may say things that are hurtful, untrue, or counterproductive. Trust that your mediator will be able to see through unreasonable requests. Take a deep breath when communication heats up. Listen closely and carefully. Do your best to stay calm, and refrain from interrupting or attacking your spouse.
When each party practices good listening skills during mediation, settlement discussions stay on track. It can benefit you to empathize with your ex, even if you don’t agree. You may find they become more cooperative when they feel heard by you. Practice these listening and communication skills ahead of time so they’re second nature during mediation.
5. Don’t rush the mediation process
It may appear to be overwhelming to negotiate a complex financial agreement or fight for what you think is best for your kids while you are also ending one of the most important relationships you’ve ever had as an adult. However, that’s what meditation is. The process requires a big learning curve, especially if you have complicated financial issues, and one of you is prone to showing emotions such as anger, sorrow, relief, fear, and disappointment. Mediation can be emotionally exhausting. Consider taking a five or ten-minute break for each hour of mediation.
6. Know your non-negotiables
What is most important on your divorce goals list? What other things can you not live without? What are you willing to give up in order to achieve that goal? Maybe it’s your house. Maybe it is joint physical custody of your children. Fold a sheet of paper in half. On the left, make a list of divorce goals. On the right, make a list of what you would be willing to give up in exchange for that goal to be achieved. Think about what truly matters to you so you don’t prolong the divorce or incur more fees. Will that item on your list really matter to you in 6 months, one year or five years?
If you follow these steps, you will find yourself best able to take advantage of mediation.
Should you and your spouse agree to divorce mediation, please know that our divorce mediation attorneys in Creve Coeur and O’Fallon are here to help and ready to meet with you and your spouse to discuss if we are the right fit for your mediation.