6 Steps to Take Before You Begin Divorce Mediation
- 6 steps to take before mediation
- Glossary of important mediation terms
- Mediation pitfalls and how to avoid them
- 3 ways mediation can lessen the emotional impact of divorce
- Chart: Mediation vs. collaborative divorce vs. litigation
- How Hello Divorce can help
- Video: 6 steps to take before mediation
Thinking about divorce mediation? This is an excellent idea if you and your spouse want to divorce amicably yet need some help coming to a full agreement on your divorce terms.
Working with a good mediator has its perks. Most notably, you can cut down on attorney fees and costs, move at your own pace, protect your privacy, stay out of court, and work toward an agreement that meets both of your needs.
"Divorce is not the end of a family; it's a reorganization." – Belgian relationship therapist and author Esther Perel
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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:
6 steps to take before 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, evaluative, and transformative mediation.
A facilitative mediator helps foster productive conversations and is ideal if you and your spouse tend to argue. Evaluative mediators help explain the legal merit of each of your requests (such as your desire for primary child custody or your spouse wanting to sell your marital home). Transformative mediators are more like counselors in that they allow you to discuss your conflicts in a safe space with the intention of ending up with solutions.
Questions to ask when interviewing a potential mediator
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 us in the same room, or will you travel between two rooms? Do you ever hold sessions by phone, Zoom, or Skype?
- What does your availability look like? How far out are you scheduling meetings?
- Will you be preparing, filing, and processing our divorce paperwork, or will we have to do that on our own?
- Do you take a retainer upfront and bill against that, or do you charge a flat fee? If so, how much? And what is your hourly rate?
- What type of mediation training or certification program have you completed?
2. Keep an open mind, and listen carefully
We want people to have a successful outcome in mediation. While this tip technically refers to what to do during mediation, it's a good idea to start thinking about it beforehand.
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 communication skills ahead of time so they're second nature during mediation.
3. Don’t rush the process
It can be daunting to negotiate a complex financial contract 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. That's what meditation is. The process requires a steep learning curve, especially if you have complicated financial issues, and all sorts of emotions may surface: anger, sorrow, relief, fear, and disappointment. Good or bad, emotions are exhausting.
Mediation process guide
Here’s a brief overview of what you might expect in the mediation process:
- The mediator meets with both parties for personal introductions and to provide a general idea of what to expect.
- Each party communicates their desires and goals to the mediator.
- The mediator asks each party clarifying questions or requests information needed to make decisions
- The mediator engages the couple in negotiations either in the same room or in separate rooms, depending on the situation. They may begin with issues that are easier to resolve and save more difficult issues for later after the group has developed a workflow.
- An agreement is constructed and drafted by the mediator or the spouses or a third party.
- The mediated agreement is submitted to the court for approval.
The process of mediation may sound difficult considering all of life's other obligations, but it is possible.
Take care of yourself before, during, and after each mediation session. Beforehand, meditate for a few minutes. Afterward, watch a comedy and laugh your butt off. Don't be so hard on yourself. Maybe you forgot who you are, and now you're rebuilding yourself. If so, welcome back.
4. Gather your financial information
Assuming you have access to your financial documents, start gathering them now. You really 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 grandmother provided the down payment, you'll likely want to get that money back. You will want to "prove" that with some sort of documentation or another financial statement. It's not uncommon for people's memories to become foggy when it comes to facts that could financially hurt them.
In the best-case scenario, you and your spouse will work together to compile documents.
So, what types of information should you gather? Check out the following paperwork categories, and do your best to gather everything you can.
Income and tax information
- Pay stubs
- W-2s and/or 1099s
- Federal and state tax returns
- Childcare costs
- Child tuition costs
- Evidence of cost of extracurriculars, such as camp and other kid-related expenses
- Partnerships and other business interest valuations
- Real estate property valuation (it's okay if you don't have this yet)
- Kelley Blue Book value on cars and trucks
- Savings, checking, money market, and CD account records
- Non-retirement investment statements for stocks, bonds, secured notes, and mutual funds
- Retirement account and pension statements
- Annuities, IRAs, and deferred compensation records
- Evidence of separate property contributions to assets
- Accounts receivable records and unsecured notes
- Real estate loans
- Credit card and line of credit records
5. Determine your non-negotiables
What can you not live without? What are you willing to give up in order to keep that? Maybe it's your house. For example, your house may be your biggest appreciating asset, and you might not want your kids to have to change schools. Think about what you would be willing to give up in exchange for that.
Other possible non-negotiables are retirement benefits and financial support. Think about what truly matters to you so you don't prolong the divorce or incur more fees. Will the [insert item] really matter to you in 90 days? One year? Five years?
6. Consider legal coaching
Some people who go through mediation also decide to hire and work with a legal coach. This is a lawyer, but they are not an attorney who will represent you in court. Rather, a legal coach is an advisor who can help you better understand your rights, the legal processes you’re going through, and what to expect going forward.
The best legal coach understands the mediation process and may even be a mediator themselves. A legal coach is an expert in divorce law who can give advice and tell you what to expect. Your coach 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.
We usually recommend meeting one to three times with a legal coach before starting mediation. Your legal coach should also review the written settlement agreement before it's finalized.
Remember, your mediator cannot take sides. You need to ensure that the agreement clearly articulates your wants and needs. For example, failure to specify an end date for spousal support payments could have unintended financial consequences down the road. Make sure the date specifying when support will end is clearly stated in the agreement.
Or, if you and your ex are not ready to decide that now, you both should at least agree in writing that you will revisit spousal support terms at a later date (and, if possible, estimate when).
Glossary of important mediation terms
Divorce mediation is meant to help simplify your life, but it helps to understand the terms used when people speak about it. Here are some of the top terms to understand as you embark on your mediation journey.
Sometimes, you need some legal advice on strategy before completing a divorce or other legal action – but you don’t necessarily need an attorney to defend you in court. This is where a legal coach can be quite helpful. A legal coach will sit down with you, get to know your situation, answer questions you may have about the legal process and your rights, and let you know what to expect. The nice thing about legal coaching is that some legal coaches offer their services on an hourly basis. For example, you can work with a legal coach for divorce in your state through Hello Divorce. Our legal coaches provide their services in increments as short as 30 minutes.
Mediators each have their own personal style, but mediation in general falls into one of three categories: facilitative, evaluative, and transformative.
- In facilitative mediation, the divorcing couple leads the conversation while the mediator is there to gently guide and “referee.” It is a structured process to help couples who would have trouble conversing and collaborating on their own.
- In evaluative mediation, the mediator takes a stronger advisory role in the discussion and negotiation. The final outcome is still up to the divorcing couple, but the mediator has legal knowledge that may impact the collaboration.
- In transformative mediation, the mediator’s goal, in part, is to partially heal the relationship by helping the couple set ground rules for effective, respectful communication. This is often done so the couple can co-parent in a healthy way post-divorce.
Although couples are expected to give and take in divorce mediation, you might identify one or two “non-negotiable” aspects of your settlement. This is a way to prioritize what is most important and a “need” rather than a “want.” For example, the idea that both parents will have access to their children for approximately the same amount of time each may be non-negotiable. The fact that one spouse must receive alimony from the other for a while to get back on their own two feet may be non-negotiable.
A retainer fee is a large sum of money often paid in advance to a professional for their services to come. Hello Divorce does not charge retainer fees for mediation or any other legal service.
The settlement is the final agreement a divorcing couple makes about all aspects of their lives together: what happens to their marital home, their accrued cash and savings, their debts, their children, their pets, and more. This may also be referred to as a marital settlement agreement or a divorce settlement.
Spousal support is the money one ex-spouse is sometimes ordered by a judge to pay the other post-divorce. Also referred to in some states as alimony or spousal maintenance, spousal support may also be decided between spouses, without a judge's involvement. The issue of spousal support may be covered in mediation. Before the divorce is finalized, it must be decided whether one spouse will pay the other spousal support, and if so, how much and for how long.
Suggested: What to Ask for in Divorce Mediation
Mediation pitfalls and how to avoid them
So, what could go wrong in mediation? The primary pitfalls stem from one or both participants not understanding or not fully committing themselves to the process. Keep these two things in mind.
Pitfall: Sometimes, both people aren’t truly committed to collaboration
Mediation requires give and take. Neither party will exit mediation getting everything they want in their divorce settlement. But if they work together, they can get some of the things they want – ideally, the “non-negotiables” that are most important to them.
Mediation can fail if both people aren’t committed to the give-and-take of the interaction. If one person freezes up and refuses to give an inch, the process is unlikely to work.
Pitfall: Mediation isn’t free, and it may fail
Although we tout mediation as a money-saver over litigation, it isn’t free. Mediators charge hourly fees, usually several hundred dollars per hour. If you try mediation, you will have to pay your mediator. If it still doesn’t work, you may also have to pay a lawyer.
Since two people need just one mediator, the cost can be split between the two of you. And if it works, mediation is a lot less costly than each person hiring a lawyer and going to court. But there is an “if” in that statement. Find out your mediator’s hourly fee before signing anything, and be aware that the number of hours the two of you will need will be unknown until mediation is over.
To read about the hourly charge for Hello Divorce mediation, click here.
How to avoid these pitfalls
The best way to avoid these pitfalls is to understand what mediation entails before you enter it and to follow these tips:
- Only engage in mediation if both of you agree you must “give” in at times. There must be some give and take for both people to be satisfied.
- Understand that the final cost of mediation is unknown at the start. You will pay your mediator for the number of hours it takes to either reach a resolution or quit trying.
- Know that although mediation rates are lower than attorney rates, they are still substantial. It’s not an investment to make lightly, so be sure you both truly want to mediate before you begin.
3 ways mediation can lessen the emotional impact of divorce
Mediation allows you to express yourself
Your mediator will facilitate a safe space for both of you to express your thoughts, feelings, and concerns. By expressing yourself and being heard, each spouse will likely feel some relief.
Mediation reduces uncertainty
It gives you a blueprint for your divorce process and your life after that. With a plan in hand, you will feel more equipped to handle whatever comes next. Divorce is scary, but working with a mediator can answer many of your “what ifs” so you can stay calm and focus on taking good care of yourself.
Mediation may improve the quality of your communication with your spouse
The process of negotiation can be a learning experience for both of you. If you share children, this is a plus because you will likely be communicating and working together for years to come.
Mediation vs. collaborative divorce vs. litigation
Both spouses work with (and likely share the expense of) one mediator.
Each spouse hires their own lawyer.
Each spouse hires their own lawyer.
The number of mediation sessions is unknown at the start, but with cooperation, participants may lower the number of hours required.
Negotiation takes place between lawyers. The number of hours they spend is out of the hands of the divorcing couple.
The divorcing couple must adhere to the court’s schedule, which may stretch divorce proceedings out for months.
Both spouses engage in negotiation with the mediator (and probably each other).
Each spouse communicates their desires to their lawyer, who negotiates with the other lawyer on their behalf.
Each spouse communicates their desires to their lawyer, who negotiates with the other lawyer on their behalf. Each spouse must attend court proceedings as well.
Both spouses get some, but not all, of what they want.
Both spouses get some, but not all, of what they want.
Both spouses get some, but not all, of what they want.
How Hello Divorce can help
Whether you have one or two pesky issues that you and your ex can't resolve or would prefer to tackle everything at the same time (with help), mediation may be a great option if you and your spouse are splitting up. Mediation allows you to have a voice in the important decisions rather than leaving them up to the court system.