|
DIVORCE MEDIATION
I have received training sponsored by the Dane County Bar Association in the special skills required to mediate disputes.
Qualifications: In addition to the training I’ve received, I have been a volunteer member of the Dane County Case Mediation Program for
several years taking mediation assignments in the financial areas of family law. (The model to be used is the “facilitative” model and we avoid as much as possible the “evaluative” approach.)
What is Mediation? Mediation is a private, informal dispute resolution process in which a neutral third person (“mediator”) helps disputing
parties to reach an agreement. The mediator has no power to impose a decision on the parties.
How are fees charged? As with all family law services, I charge for services by the hour. Costs such as filing fees, experts such as
pension plan evaluators or real estate appraisers are billed through at the actual cost. I do not charge for photocopying, ordinary postage or long distance telephone charges. A retainer is determined
once I have had an opportunity to determine the apparent effort that resolution of the issues will require.
Is your case right for Divorce Mediation? While I have mediated cases with minor children and with substantial property involved, the best cases
for the “divorce mediation” model are those without minor children and not a lot of property to divide. These types of situations typically present fewer issues and can be resolved in less time being
expended by the mediator. It is also important that the parties can be in the same room together and that they are motivated to a non-combative process that will go rather quickly. If there is any concern
about the honesty of your spouse, then I strongly recommend AGAINST Divorce Mediation.
If there is a major “power imbalance” between the parties, a significant history of physical abuse, or any concerns about a substantial amount of
“hidden assets”, then it is doubtful that “divorce mediation” is the correct approach. These tests also hold true for the “collaborative” divorce approach, with the notable exception of the
“power imbalance” concern. One of the benefits of the “collaborative” approach is that a “power imbalance” whether real or imagined, is effectively neutralized.
When I am privately hired to assist people in the divorce process through “divorce mediation,” it is typically a “pro se” matter when neither party is
represented by their own attorney. The parties understand that the “evaluative” model must be utilized to a much greater degree, this in addition to the “facilitative” model. The parties sign an
agreement confirming that they understand I will be assisting them in understanding the impact of the law on the facts they present to me as the mediator and that I will be drafting documents for them and therefore
“practicing law.” I do not give “legal advice” as such to either party, in that I cannot assist one party at the expense of another. I do, however, explain my understanding of the law as it
relates to a given area so that the parties can make knowing and voluntary decisions. I very often refer parties to experts such as appraisers and psychologists, especially where I believe my expertise is not
adequate to assist the parties in achieving a fair resolution to their problem.
FOR MORE INFORMATION ON MEDIATION IN GENERAL, PLEASE REFER TO MEDIATION PAGE ON THIS WEBSITE.
How is Divorce Mediation conducted? Typically, what I call “divorce mediation” means that the parties to the divorce are “pro se”, that
is, not represented by their own attorneys.
The first step is to obtain the information form the parties about their marriage, finances, children, and property. Both parties leave each mediation
session with copies of all documents (such as tax returns, check stubs, employment contracts, credit card statements, etc.) that have been produced and exchanged. One standing rule that I have is THERE ARE
NO SECRETS! Furthermore, I cannot keep secrets from one of the parties at the request of the other.
HOWEVER, all the information that I receive from or on behalf of the parties is treated as confidential and I will not reveal to any third persons what
I learn in mediation sessions or for mediation sessions. The law requires full and complete financial disclosure to each other and to the court (Note: The Financial Disclosure Statements that are filed
at the time of the final non-contested trial are sealed in separate envelopes by the court and cannot
be opened without a further order of the Court.) and all information that is required to be produced is produced unless it is otherwise privileged.
Referrals to experts are made on an “as needed” basis. In addition to appraisers and accountants, there might be a referral to a vocation evaluation
specialist. A more common need is to engage the services of a psychologist to assist parents in arriving at suitable arrangements for custody and physical placement of their children.
What about healing? It is important to understand there is often a lot of grief that accompanies the death of a marriage and the separation of a
family. It is important to not
rush the divorce process through because the process can be part of the healing process. The mediation process is designed to reduce the amount of hurt that is caused by the process
itself. Too often we see people in the litigated divorce using anger and hatred to mask their grief and pain. I believe that to be very unhealthy. It is important to deal with the “whole” person, rather than just that part that owns property, earns a living and is a parent. I cannot stress strongly enough the value and benefit of each party working with their own respective mental health professional to come to grips with what some would call, “the failure” of the marriage.
When I conduct Divorce Mediation, it is done with both parties present so that all information is shared. The initial session is for the most
part devoted to exchanging financial and other information so that I, as the mediator, and the parties are all working with the same agreed upon information. If appraisals are necessary, I will make those
arrangements or give the parties referrals so they can make the arrangements. I confirm with a letter what happened with a letter to the parties prepared immediately after the session as to what information
was exchanged and if any agreements were reached. The parties leave each session with copies of all documents produced. I, of course, keep copies of all documents for the file.
When helping parties work out the agreements, there is a mix of “facilitative” mediation with “evaluative” mediation. IT IS IMPORTANT TO
UNDERSTAND THAT I DO NOT REPRESENT EITHER PARTY. My goal is to help parties understand what they are agreeing to and why. It is the practice of law but in a non-combative sense. If either party
wishes to withdraw from the process, then I am disqualified from further involvement.
As long as I am involved, I will be drafting (or making arrangements for preparation) of all necessary documents such as the Joint Petition for Divorce, the
Vital Statistics form, the Marital Settlement Agreement, any required Deeds, mortgages, promissory notes, Real Estate Transfer Tax Returns, Qualified Domestic Relations Orders (QDRO) as well as the final documents
(The Findings of Fact, Conclusions of Law and Judgment of Divorce). I provide the forms and will explain how to prepare Financial Disclosure Statements but leave the preparation of those statements to the
parties.
There is still the 120-day waiting period from the time the Joint Petition is filed until the final stipulated divorce trial can be held. Typically,
all issues are agreed upon and the Marital Settlement is signed before
the case is even filed. However, we can start the waiting period running by filing the Joint Petition for Divorce before the Marital Settlement Agreement is completed.
Once the Marital Settlement Agreement is signed and filed with the court showing that we are ready for the trial, the court will schedule about 15 minutes for
the final “trial,” which is a requirement of Wisconsin Law. I will conduct the trial for you and will have the final documents ready to be presented to the Judge so that you’ll receive your copy of the
Findings of Fact, Conclusions of Law and Judgment of Divorce that very day.
Benefits: The atmosphere is non-combative and cooperative and designed to save as much of your dignity and self-respect as is possible. The
ultimate cost will probably be less because of the use of one attorney.
Disadvantages: You have to rely upon the mediator to address all of the issues and make a correct analysis of the facts as they relate to the
law. You do not have the benefit of your own attorney for advice upon which you can rely. Further, because the mediator is neutral, you cannot expect the mediator to neutralize any power imbalances
between yourself and your spouse nor discover “hidden assets.” If you have only limited knowledge of the finances of you and your spouse, then you should have your own attorney!
Cost: The cost of the “Mediated” approach will be more than half of what you can expect if the divorce is processed
“collaboratively.” When the “collaborative” process is used, the drafting responsibilities can be shared between the attorneys and the need for the often lengthy confirming letters described above is
significantly reduced.
Without doubt, however, the cost of either the “mediated” or “collaborative” approach will be significantly
lower than if you go through the typical “litigated” (“contested”) divorce.
For most cases, I prefer to assist family law clients as a “collaborative” lawyer. In the “collaborative” process, both parties to a divorce or
other family law dispute have their own attorney to explain the law to them. Both the parties and the attorneys are committed to resolving the case without resorting to and CONTESTED hearings. If either
side wants to “have their day in court” then both attorneys are required by the Collaborative Law Contract to withdraw from the case. The result is the parties save themselves much of the emotional and
financial distress that goes with the typical “litigation” model for divorce. (I call this the “blood and treasure” savings.)
FOR MORE ON COLLABORATIVE FAMILY LAW, GO TO THAT SITE:
|
