What is Family Mediation?

Mediation is an assisted conversation that helps you resolve problems. A neutral mediator (not your attorney or your spouse’s) meets with you both and helps you productively dialogue about all the many decisions you must make when you are faced with a divorce or other family dilemma. You may have found that such discussions quickly degenerate into negative interactions. Angry, hurtful things may have even been said during those “talks.” A neutral mediator helps keep you on track and helps you deal in an more productive way with difficult conversations.

Mediators Facilitate
Decision Making

The mediator does not make decisions for you. You and your spouse know your own needs, strengths and weaknesses the best. You are, therefore, best positioned to make fully informed decisions. All of our Family Court Judges agree that no matter how many days of trial they listen to, they will never be as informed as you are. (Plus, they’ll also tell you they don’t have that much time to give each case.)

But you may not be sure of the options available or even the full range of issues about which you need to be making decisions. That’s where a mediator can help.

The use of mediation has steadily grown as people have become increasingly dissatisfied with the ability of the Court to resolve intensely personal issues. A lawsuit works well for an auto accident, for example. Two people who never knew—much less cared about—each other enter litigation and endure document subpoenas, depositions and perhaps a trial. Once the lawsuit is over, they never have to deal with one another again. Not so with families in transition. Especially when children are involved.

Mediators Help you Build a Foundation for Successful Co-parenting

When people separate or divorce, they frequently still care about each other at some level (despite feeling hurt or angry). If they have children, they will have many years to encounter one another at various events in their children’s lives. Soccer games, school plays, graduations, weddings and eventually births of grandchildren all present an opportunity to be with one another in the future. If couples are able to process their divorce in an honorable, respectful way, those events will only be joyful ones for their children.

Yet we all know warring ex-spouses and have watched their children tensely go from mom on one side of the gymnasium to dad on the other, worried that every moment they are with one parent makes the other parent upset. Holidays become dreaded rather than happy occasions for kids who know it only provides another opportunity for their parents to argue.

It doesn’t have to be that way for your children.

HOW DOES MEDIATION WORK?

You and your spouse will meet with the mediator for one or more sessions to discuss each issue you are required to address when divorcing.

In addition, when you mediate, you are not limited to only those issues the Court requires you to address but you may bring to the table any issue which is important to you. For example, parents frequently address how they will deal with future conflicts and how they will ensure that their children will not be put in the middle of those conflicts. This is the kind of issue which the Court won’t require you to address but which may meet your needs. Mediation provides that sort of flexibility.

On average, couples use two or three sessions of about two hours each to sort through all issues and reach decisions. Some may use less, particularly if they have no children and relatively few assets. Some may need more if they develop a detailed parenting plan or have a complex estate. It’s important not to rush the process and to use as many sessions as you need to fully address each concern. Only then will you emerge with a truly satisfying and comprehensive agreement.

Mediation is hard work and we’ve found that most people feel that 2-hour sessions are optimal. However, sessions can be as short or as long as you both agree is needed. The length of time between sessions should also meet your needs.

Some people want to keep the momentum going and schedule sessions one week apart. Others need time to gather documents or think about various options and sessions are scheduled further apart.

Once you have developed agreement on all issues, the mediator puts your agreement in writing so you can evaluate the settlement as a whole. You will return for a final session to fine-tune the agreement if needed and sign an original.

DO WE NEED ATTORNEYS IF WE MEDIATE?

It’s important to remember that your mediator is neutral; and although she will give lots of legal information to you both, she will not provide legal advice in mediation. For that, you’ll need to consult an attorney. For example, your mediator may inform you that in Michigan, property that you obtained during your marriage is generally what gets divided in a divorce. But she won’t advise you to accept or reject an offer which has been given for how to divide the property.

Your mediator will help you think through the ramifications of various offers but will not advise you one way or another. She can’t give advice and still remain neutral.

There are Three Distinct Tasks Required by a Divorce

(1) You must understand the laws that apply to parenting time, child support, property division and spousal support.

(2) You must make decisions and come to agreement about each of those issues.

(3) Paperwork to properly file for divorce (the Complaint for Divorce) and finalize your divorce (the Judgment of Divorce) must be prepared and filed with the Court.

Your Mediator assists you primarily with the second task (coming to agreements). These agreements form the basis for your Judgment of Divorce. However, the first and third tasks must also be accomplished and that’s where an attorney can provide assistance.

When does an attorney become involved?

Some people choose to work through all of the issues, reach a tentative agreement, and then review the agreement with an attorney before signing. Others start with mediation and seek advice from an attorney along the way, when they feel they need it, perhaps between mediation sessions. Still others obtain legal advice before scheduling their first mediation session. There is not a right or wrong way to approach this decision. Do what meets your needs and makes you most comfortable.

When Consulting with an Attorney, Choose Wisely

It is critical that you choose your attorney wisely. A number of attorneys understand the hard work you do in mediation and honor your commitment to deal honorably and fairly with both yourself and your spouse. These attorneys support your hard work in mediation but will make certain that you fully understand the agreement you are considering, and will advise you about what the outcome might be if you submitted your case to a Judge to decide. Your attorney may suggest additional issues you might want to bring up in your next mediation session.

Conversely, there are attorneys who do not understand how to work with a client who has chosen to mediate. Attorneys accustomed to litigating frequently believe that you are better off if you leave the decisions in your attorney’s or judge’s hands.

If you are unsure whom to retain, the Berrien Association of Mediators has developed a list of attorneys who will look out for your interests while supporting your ultimate objective of fairness for your family as a whole.

WHAT DOES MEDIATION COST?

Because the number of sessions and length of sessions vary for each family, it’s hard to predict what the full cost will be. Most people chose to split the cost of mediation equally. However, you may agree to a different percentage split if you both prefer.

A retainer fee sufficient to cover 5 ½ hours time, is required when you begin mediation. If more time is necessary, you would need to replenish the retainer.

If you would like a copy of our Agreement to Mediate, please call the office and request that it be mailed or e-mailed to you.

WHAT ARE THE BENEFITS OF MEDIATING?

Mediation Allows You—Not Attorneys or the Court—to Shape
your Divorce

When you choose to mediate, you remain in control of your mediation process: you decide how many sessions you use, how long each session goes, what issues you address, how you divide the costs, etc.

Such control is not available when you litigate your divorce because the Court will schedule hearings and so may your spouse. Those hearings are not scheduled at your convenience and you (and your attorney) don’t have a choice of whether to attend.

People who have litigated their divorces often talk—with frustration—about feeling that their lives and futures were out of their control when they were in the middle of their divorce. Mediating allows you to remain in control of the process, your schedule, the expense, and your future.

Divorce frequently becomes a “war zone”

Most people experience the initial reality of divorce as scary and threatening. Suddenly the future on which they’d built the last number of years disappears and a sense of fear, maybe even panic sets in. When human beings feel fearful, they take steps to reduce such fear. In a divorce situation, those steps frequently include “cleaning out” a bank account, running up a charge card before it gets canceled, hiding documents—or worse—hiding children.

The problem is, each of those actions will likely elicit a retaliatory response from the other spouse as he or she begins to operate from fear as well. Pretty soon, there’s a “ratcheting-up” of conflict as each action taken out of fear elicits a response which in turn elicits another reaction. It’s a pretty miserable cycle.

Mediation provides couples an early opportunity to step back, make a commitment to avoiding such actions, and get down to the business of rationally dealing with children, the home, credit cards and 401(k)s. It’s not easy but it’s far more satisfying and less stressful in the long run. Most importantly, it lessens the stress on children.

Mediation is cost-efficient

As you might imagine, the alternative to mediation can often be costly. If one spouse “cleans out” a bank account, you can count on the attorney for the other spouse filing a motion with the Court asking that the funds be returned. An answer to that motion must be filed with the Court and one or more hearings are required to bring some calm to bear.

If, instead, a couple schedules a session early on with a mediator, they can discuss how bank accounts should be dealt with and implement the plan they develop. Thus, they avoid Court fees and paying two attorneys to subpoena bank account records, draft motions and argue in Court at multiple hearings. The fact is, the likely outcome from a Court process is an equal division of bank account funds but by the time Court and attorney fees are paid, the funds may be exhausted!

Mediation allows you to “test-drive” your agreements

Mediation also provides time to try options under consideration. For example, you may both feel that a particular parenting plan would work for your children but some doubts remain about how well they will adapt. Many couples try a particular schedule for a few weeks and then discuss the pros and cons at the next mediation session. Rarely is such a luxury provided in litigation. Rather, each side often takes a position and becomes firmly entrenched in that position as a natural consequence of litigation’s adversarial nature.

Mediation minimizes court appearances

A day in court is just another day at the office for us attorneys. But ask people how they were feeling the morning of trial and most people report that they didn’t sleep at all the night before or that they hadn’t been able to eat for days or that their hearts were beating out of their chests-or worse, all these stresses are being experienced! Yet during this stressful time, jobs must be maintained and children must be cared for.

If a couple reaches agreement in mediation, the stress of hearings and trials is avoided and they retain more of their personal resources for children, work, church, friendships, and life in general.

Mediated agreements are more likely to last

Agreements reached together are more likely to be followed than decisions that are imposed by the Court. This is just human nature. We all feel better about doing things we agreed to do. Furthermore, people are remarkably creative at finding ways to just barely comply with an “Order” and still make the other party’s life miserable!

The best example I’ve heard of this was the husband who was ordered to return a bird to his now ex-wife. He returned the bird in a paper bag, which he promptly opened at his ex-wife’s attorney’s office with the exclamation: “The judge said you got the bird. He didn’t say #@*! about the cage!”

Nothing is worse than enduring such acting out for years after your Judgment of Divorce was entered. It’s even more painful when played out over issues about your children. These kinds of scenarios are largely avoided when you implement decisions you had a hand in shaping.

IS MEDIATION FOR EVERYONE?

No. There are people for whom mediation is not the optimal process. If there is on-going physical abuse in a marriage, it is unlikely that the abused spouse would feel free to express his or her needs. Thus, any agreement would be compromised because it would likely be reached by concessions made only by the abused spouse.

There are reasons other than physical abuse that may result in one spouse feeling intimidated by the other. If there is concern that one party may avoid openly and honestly discussing what is important to him or her, the litigation process would likely better serve that person. He or she can always use mediation at a later point in time, perhaps with the attorneys present in the session.

If there is on-going substance abuse or if mental illness is present, mediation would not be an appropriate choice.

HOW DO WE PREPARE?

Work the website

If you have children, we suggest you individually work through the program found at www.UpToParents.org. This award-winning website offers the best opportunity to consciously commit to keeping your children’s needs central in your decision-making.

List your assets and debts

It’s helpful, but not required, that you bring to your first session a list of each asset you own (home, cars, boats, motorcycles, jet skis, snowmobiles, motor homes, bank accounts life insurance, pensions, investments and retirement plans, etc.) and a list of all your debts. At some point, you will need to bring a document evidencing the value of each asset (home appraisal, 401(k) statement, www.kbb.comprintouts for car values, bank statements, etc.). A statement showing the balance owed for each debt is also helpful (credit card statements, mortgage and car loan payoff statements, etc.)

Bring an open mind

Most importantly, come with an open mind and a commitment to fairness for you, your spouse, and most importantly your children. That commitment will be tested along the way as you grapple with difficult decisions but you, like thousands of other couples, can emerge from the process with an agreement that works.

It won’t be 100% of what you want, nor will it be 100% of what your spouse wants. That’s the nature of compromise. But it will likely feel like a fair settlement with which you can live. Sometimes it just doesn’t get better than that! And as the years pass, you’ll have the benefit of knowing you dealt honorably and respectfully with one another. Down the road, that’s more meaningful than who got the crock pot!

WHOM DO WE CONTACT?

Call 269.428.3447 or e-mail us at [email protected]. We commend you for choosing a process that allows you to divorce with dignity.

TESTIMONIAL

“I appreciated the extra time Deborah spent with us. Initially, it was hard for me to let go of some of my dreams but I think the benefits of both of us agreeing will be best in the end. I feel so strongly about our decisions being mutually agreeable and that our relationship, for our son’s sake remains friendly and cooperative. I can really see how much of a difference mediation makes!” – Julie H.

FINAL NOTE

Real Simple Magazine asked its readers, “What has been your biggest success in life?” People wrote in about completing a marathon, completing medical school at age 48, and conquering anorexia. But the response that caught my attention read as follows:

“I’m proud of how I conducted myself during my divorce. I worked things through with my ex-husband so my daughter would not be caught in the middle, and I moved on without blame or excuses. It was a painful time, but I handled it in a way that I hope my daughter will one day be proud of me as well.” Real Simple, Sept 2004.

We wish the same pride for you and your children.