The first session is a preliminary conference attended
by husband, wife, & mediator. This meeting
lasts one to two hours.
Our agenda for this first meeting is as follows:
- Get acquainted
- Mutually decide if the chemistry is right,
- Discuss fees
- Discuss plans & dates for separation
- Discuss preliminary plans for children’s living arrangement
- Discuss temporary family financial arrangements
- Explain the mediation process
- Choose mediation session length
- Discuss the court process, court required cooling off delays, documentation, signatures required etc.
- Decide on the amount of attorney involvement desired
- Decide which party will be the petitioner
- Set the date for the mediation conference
- Deliver the data-questionnaire to the client
The next event is the completion by the clients of the data-questionnaire. At the first meeting, the parties received one or two copies of the questionnaire as desired. They may decide to fill out the form separately or together or delegate the project to one or the other. The form is about fourteen pages in length, somewhat comprehensive (VIN numbers on all the vehicles) and usually takes two to three hours to complete. The clients are asked to return the form at least one week before the first mediation session for mediator review.
The Mediation Session(s):
If the mediation is planned to be completed all in one day, the session begins at 9:00 a.m. on the chosen day and is scheduled for a minimum of eight hours. Attorneys are welcomed but not required. The parties usually start out in a joint session with the mediator making an opening statement as required by law.
Next, each party is given the opportunity to tell his story, give his priorities for the mediation and generally ventilate the frustration and pain that has brought him/her to this point. Having done over 1000 mediations and having gone through a divorce myself, I can empathize with the parties. I know that before the parties can deal with the child issues, and the details of 401 K’s, mortgages, and equities, they must begin to address the emotional pain. It is like being bitten by a rattlesnake, you must suck the poison out first before you move on to other things.
Almost everyone’s story includes the fundamental feelings that, “I am the good guy and the other guy is the bad guy”. This story needs to be told and heard by the other party and can be communicated safely under the guidance of the mediator.
After each has had the opportunity to speak, to tell his story, to ventilate, to unload some pain, it is time to move forward. The mediator will then invite the parties to begin to plan the future.
The parties will be asked, “Give me one issue that you want us to discuss and come to agreement about today.” The mediator will write on a white board the issues that are forth-coming, one at a time from each party as he goes back and forth between the parties with the question. If the parties leave out any significant issue, in the opinion of the mediator, he will suggest it to them after they have named all their issues.
The mediator will then lead a discussion of one issue usually until a consensus has been reached on that issue. Then the next issue is addressed. The issues are worked through with breaks taken at any time someone needs one.
In over 23 years of practice, the parties have never failed to reach an agreed settlement.
Caucus:
Caucus is the term used in mediation for splitting the parties into two separate rooms. We have read that the term originates from the Olgonquin Indians and refers to a counsel as in a war or peace counsel. The mediator works with one party at a time exploring options, asking questions, dealing with hurt feelings, and helping the parties to move toward resolution of a difficult issue (e.g. custody of the children).
The mediator moves back and forth between the rooms conveying proposals and counter-proposals until the parties have come to agreement on that topic.
Joint Session vs Caucus Mediation:
There is considerable controversy in the field over the best way to handle mediation. Attorneys attending mediation with their clients, and attorney-mediators have a strong propensity often, an insistence, on the exclusive use of caucus as the only form of mediation acceptable. They state, as their reason, the potential volatility of their clients and/or the reluctance of the client to be in the same room with their spouse.
We strongly disagree with that choice. Our preference is to use a combination of joint sessions and caucus.
Lawyers are accustomed to the caucus format as they use it regularly in settlement conferences. We suspect that the real reason they want to keep the parties separate, is that it is easier on the lawyers (and it is easier on the mediator). Being in a room with two hurting, angry, sometimes bitter spouses, can be difficult. And most lawyers are not emotionally equipped to deal with that stress.
There are occasions where we do not use joint sessions, for example if criminal behavior or physical abuse is a factor.
However, the main reason we use joint sessions is because the communication process is enhanced by hearing the thoughts, feelings, and ideas, directly from the other spouse rather than hearing it second hand.
The mediation process has a healing quality to it. Letting go of bitterness, moving on, starting a new life, developing a commitment for good co-parenting, all are best served by working together in the safe environment provided by the referred mediation.
We find that totally keeping the parties separate
• makes both parties unnecessarily positional,
• adds to the time required for settlement,
• adds to the costs,
• steals power from the parties,
• retards healing,
• reduces future cooperation and
• lessens the prospect of successful co-parenting.
So we use a combination of the two approaches. We stay in joint session until it appears that it would be helpful to separate the parties to relieve tension or work on a specific issue in private. We often use both forms in the same mediation moving apart and coming back together as appropriate.
After all the issues have been resolved into agreement, the mediator will read the agreements out loud to be sure that everyone is in consensus. The Settlement Agreement is then drafted and may be signed at that time, or the parties may take the agreement to an attorney of their choice, for review before they sign the document.
Once the agreement is signed, it is irrevocable and cannot be changed without mutual consent.
Involvement of Lawyers:
You may choose to utilize our staff attorneys for drafting of the legal documents including the Final Decree of Divorce. Our attorneys are also available to go to the court with the petitioner for the “prove up” of the divorce in front of the judge.
The parties may have had lawyers present during the mediation. In this case their lawyers have been available for consultation and advice and usually the document can be signed immediately.
If they have not had lawyers present, they may choose to take the Settlement Agreement to a lawyer of their choice for review before they sign it. They may also choose to have their lawyer draft the legal documents including the Final Decree of Divorce.