MEDIATION – DEFINED
Mediation is a process that allows you and your spouse to resolve conflict in a peaceful manner. You and your spouse meet with a neutral third party who is trained in the mediation process (the mediator). The mediator will assist you and your spouse in discussing the outstanding issues, and helping both of you review your options, so that you may reach an acceptable outcome of your differences.
BENEFITS TO PARTICIPATING IN MEDIATION
Mediation offers a less stressful option for couples in that the mediation process offers the couple the ability to maintain total control over the outcome of their case. Additionally, Mediation can save you both time and money verses litigating your case.
ISSUES TO BE DISCUSSED AT MEDIATION
At mediation, the topics for discussion are decided by you and your spouse. The mediator will give each of you an opportunity to present an opening statement. This opening statement will consist of what you believe the issues are, from your perspective. As the mediator is a neutral third party with no information about your case, these opening statements assists the mediator in determining the what the issues are, and what the topics of discussion will be. Any issue you have between you and your spouse may be discussed at mediation. Nothing is too small or too great to be discussed at mediation. In fact, mediation is a safe environment to express your concerns and opinions regarding your case. And often times, clearing the air at mediation can help both of you to move forward in a positive way.
MEDIATION VERSES TRIAL
In mediation, you are free to craft an agreement that makes sense to you, your spouse, and your children. If you and your spouse come to an agreement (or a partial agreement), you “own” the terms of that agreement, are more likely to be satisfied with the terms, and therefore more likely to abide by the terms. It’s never best to allow the judge to have complete control over the outcome of your case, or to let the judge decide what your future will hold. Mediation allows for you and your spouse to be creative, and to work towards an agreement that will be durable – standing the test of time.
And, mediation is a cost-effective means to reach an agreement. Trial is financially expensive, and emotionally tolling. After spending thousands of dollars, trial can leave parties bitter and disillusioned at the judicial process. And, if you and your spouse are not getting along, the trial process will only enhance existing hostility between each other.
Perhaps you schedule a second session with the mediator. Or, if you believe you are truly at an impasse, a trial on the outstanding issues may be required. But, if you have reached a partial agreement in mediation, any issues agreed to at mediation will not need to be discussed at trial, saving you money at trial.
MEDIATION AGREEMENTS ARE BINDING
The mediation process, and entering into an agreement at mediation, is a voluntary process. It is important that when you enter into your agreement, you are doing so freely voluntarily, and with the expectation that you will be bound by the terms. So, it is crucial that you understand the terms of the agreement prior to entering into it.
However, once you and your spouse have entered into an agreement, the signed mediation agreement becomes a legal and binding contract, enforceable by the court. So, it is important to fully understand the terms of the agreement before you sign the mediation agreement, as the court will hold you to the terms of the agreement.
ATTORNEY PARTICIPATION AT MEDIATION
Yes! The mediation process doesn’t look to exclude your attorney. In fact, it welcomes their participation. Clients depend on their attorneys to provide them with legal advice, and to assist them through the divorce process. Having your attorney present at mediation is important as they can outline the issues for the mediator, and assist in generating options. And most importantly, they can explain the implications of the agreement before you sign it. As discussed above, there is no going back once the agreement has been signed.
HOW TO PREPARE FOR MEDIATION
Before you attend Mediation, it is important for you and your attorney to prepare. It is also imperative that both you and your attorney have a shared understanding of what your desired outcome is at mediation. At Schmitt Law, PLLC, we sit down with our clients prior to mediation and discuss our strategy. This allows us to be “on the same page” with the client when we attend Mediation.
In order to have a successful mediation, the following information must be compiled prior to attending a divorce Mediation:
- Statements for all of your bank accounts.
- A list of your vehicles, with a Kelly Blue Book value on each vehicle.
- A list of your recreational vehicles (boats, campers, snowmobiles, etc.), with values for each.
- Statements for your mortgage(s) (to include home equity lines of credit and second mortgages).
- Copies of all appraisals for each real property. If you have not had your real property appraised, have it appraised prior to mediation.
- Statements for life insurance policies, and their cash value.
- Statements for each of your retirement accounts (401k’s, IRA’s, 403B’s, pensions, profit sharing, etc.).
- Statements for each of your investments (stocks, bonds, mutual funds, etc.).
- Statements for all of your credit cards, and documents for all other indebtedness.
If you have children under 18:
- Verification of yearly daycare costs.
- Cost of employer provided health insurance with breakdown for costs for self and cost for self with family.
- Tuition statements.
- Prior to mediation discuss with your attorney
- What type of legal custody you are seeking.
- What type of physical custody you are seeking.
- What parenting time schedule you are seeking.
- What holiday schedule you are seeking.
- What type of telephone contact you are seeking.
- Who will provide transportation for pick up and return of the children.
- Who will claim the child as a dependent under City, State and Federal Taxes.
Make sure to provide copies of the documents to your attorney, to ensure they have them available at mediation. The preparation you and your attorney do now will hopefully result in a fair and equitable agreement at mediation (and completion of your divorce).
FINANCIAL AND INCOME INFORMATION NECESSARY FOR A SUCCESSFUL MEDIATION
Complete and accurate financial information is important for the process of mediation. You will need the following information:
Real Property: furnish appraisal and last mortgage statement
Bank accounts and savings accounts: furnish last statement
Stocks, Bonds, Mutual Funds: furnish last statement
Life Insurance – Name of Company, Policy Number, Face Value, Type of and Location of policy
Business or Professional Interests: furnish last balance sheet and P&L statement, tax return, buy-sell agreement
Miscellaneous Assets – Patents, Trademarks, Copyrights, Royalties, Stock Options
Pension Plans, Keogh, IRA’s or Profit-Sharing Plans: furnish last statement and description
Automobiles, Recreational Vehicles, Tangible Personal Property
Mortgage on Real Property
Notes Payable to Banks and Others
Loans on Insurance Policies
Other Debts (including store charges, credit cards)
HOW TO HAVE A SUCCESSFUL DIVORCE MEDIATION
Mediation is set in your divorce case. How do you set yourself up to have a successful mediation? Here are the top tips to ensure you make the most of your time and money at mediation:
- COMPROMISE AND CONCESSIONS ARE NECESSARY.
If neither you or your spouse are willing to move from your point of view, your case will inevitably end up in the hands of the judge. Remember, mediation is a voluntary process wherein you and your spouse maintain total control of the outcome of your divorce. You own the process and own the outcome.
- BE PREPARED.
Have your financial documents with you at mediation. Remember, it’s impossible to resolve financial issues without written documentation. Be prepared to show the mediator and your spouse through statements. Don’t expect them to believe it just because you say so.
- BE REALISTIC WITH YOUR EXPECTATIONS.
Set your goals appropriately. Remember, there is never a time that just one party walks out of mediation with everything they set out to get.
- BE COOPERATIVE, NOT COMPETITIVE.
Look for your common shared interests. Look for the win/win.
- BE OPEN MINDED.
Be prepared to listen to your spouse, and consider their point of view. An agreement today can result in improved capacity co-parent in the future. Once again, a win/win.
- DON’T PLAY THE BLAME GAME.
The mediator doesn’t want or need to know the details of why you are seeking a divorce. The mediator is a neutral third party assisting you in getting to a resolution. The “what happened during our marriage” conversation is not necessary.
- GET YOUR HEAD IN THE GAME.
Enter into mediation with the mindset you are here to fully engage in the process, to get resolution in your divorce, and to walk out of mediation starting your new life.
- WATCH YOUR WORDS AND YOUR TONE.
If your true goal is to reach settlement, then be careful what you say and how you say it. This is not marriage counseling, a trial, or the time to hash out your differences.
Mediation empowers couples. Set aside your anger and frustration, your need to win, and your need to blame. If you are able to do so, you will walk out of mediation with a durable agreement that satisfies both you and your spouse. And, you will have maintained total control of the outcome of your divorce. Parties who reach their own agreement are much more satisfied than parties who hand the power over to the judge.
GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.
We understand that filing for divorce can be an emotional and confusing experience. That’s why we are committed to providing personalized service to each client we represent, and will be with you through this difficult journey. At Schmitt Law, PLLC we encourage clients to take a more collaborative approach to divorce that promotes positive communication and cooperation. Through mediation or the collaborative divorce process, Laurie guides her clients through amicable divorce settlements so they can move forward with their life. To discuss your circumstances and legal options, contact Schmitt Law, PLLC at (616) 608-4634 to schedule a consultation. Or, contact us online to arrange a consultation.