Informative Mediation — A New Model for Tough Economic Times (Part 1)

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(This is Part 1 of 2. Read Part 2 here.)

 

Some couples going through a divorce are rational, intelligent, honorable, generous and strongly focused on trying to create the best possible futures for their children as a two-home family.  In some cases, even where there has been adultery and betrayal, and even where one of the parties has struggled with depression or substance abuse, some individuals don’t hate each other just because they are getting a divorce. 

I have been litigating divorce cases throughout Northern Virginia for over eighteen years, and half of my practice is still litigation.  However, unlike those of my colleagues who are focused almost entirely on winning the battle in court, it has also been my honor and privilege since 2001 to assist divorcing couples in amicably mediating their divorces.

There do exist individuals who face the restructuring of their lives and family with honor and integrity.  There do exist individuals who wish to exemplify for their children, by example, how to deal with the sadness and tragedy life can offer at times.  There do exist individuals who understand that divorce, as any adverse circumstance, can bring out either the best or the worst in a person.  There do exist individuals who rise to the challenge of doing what is right, given the circumstances, for the family.

These are the people my firm markets to – people who want to handle the legalities of their divorce without adversity.  People who do not wish to resolve their disputes the old-fashioned way, which is by hiring two lawyers to put on a show for a judge.  People who understand that lawyers can argue both sides of anything, including Brandenburg, Keeling, and the related cases.  People who understand that the judge will find a way to do whatever he or she feels is just.  Just like squeezing a balloon – squeeze here, but it comes out there.  Get what you want as to the valuation of an asset, but get hit on spousal support or attorney’s fees. 

Not everyone distrusts or has reason to distrust his or her spouse in a divorce.  Not everyone needs an advocate to actively and adversarially negotiate, but instead can use the attorney in his or her corner for advice, for information and for document reviews.  Not everyone needs to pay for a two-attorney collaborative process.  Not everyone wants to duplicate the costs and effort in obtaining the assistance of experts “for each side.” 

How can a divorce attorney best serve this market?  Through the process of Informative Mediation, summarized and described below. 

SUMMARY OF THE INFORMATIVE MEDIATION PROCESS

Step One.   The paralegal identifies and screens for appropriate participants.   

Step Two.  The paralegal sets the initial appointment and sends the clients a Topics List.

Step Three.   The Informative Mediator conducts the Initial Session.

A. In the Informative Mediation model, as in all models of mediation, during the initial session the mediator describes the style of the mediation and the usual progression of the process.  

1. In Informative Mediation the clients are told during the initial session that most simple Informative Mediations are completed within three to five two-hour sessions.

 
2. In Informative Mediation the clients are told during the initial session that they will each be fully informed as to the law throughout the process.

3. In Informative Mediation the clients are told during the initial session that “what the law is” is arguable.   The goal of Informative Mediation is that if the clients each have their Mediated Agreement reviewed by individual attorneys on each of their behalf before signing, they each receive no further legal information that they did not receive during the mediation. 

4. Because what individual attorneys advising each client might tell them relates to how the local judges have been ruling lately, the clients are told during the initial session of the Informative Mediation that there is an expectation they are asking for an evaluative component to the mediation, and that they will receive evaluative information. 

5. The clients are told during the initial session of an Informative Mediation, that if and as appropriate, the mediator may at times present a variety of options which have worked for others in similar situations, but will not unethically advise the clients to take any particular course of action. 

6. The clients are asked if they have any questions.

B. The Agreement to Mediate is discussed briefly during the initial session, paragraph by paragraph, and any questions of the clients’ are answered.

C. The mediator asks brief background questions during the initial session, in order to gain an understanding of the clients’ situation.

D. Because they will be signing a Mediated Agreement at the conclusion of the process, the clients are told during the initial session of an Informative Mediation what a contract is, and what a contract isn’t. 

E. The remainder of the initial session is then spent addressing each item on the Topics List.

F. The Informative Mediation Model considers the restructuring of the family as a whole.

G. The clients may decide at the conclusion of the initial session that they wish to gather additional information, either from their own sources, or by referral to other members of the mediator’s “team.”

Step Four.   The Informative Mediator helps the clients to propose, to evaluate and to agree on options, usually during the second session.

Step Five.   The Informative Mediator writes down the points of agreement, usually during the last session.

 
Step Six.   The Informative Mediator explains the meaning of the boilerplate language which will be included in the Mediated Agreement, and the choices within that language, during the last session.

Step Seven.   The Informative Mediator explains the actual divorce process to the clients during the last session. 

Step Eight.  The Informative Mediator drafts the Agreement.

Step Nine.   The Mediated Agreement is scanned and sent to each client.

Step Ten.  The Informative Mediator prepares any necessary retirement orders, military DD forms and transmittal letters, after receipt of a copy of the signed Mediated Agreement from the clients.

Step Eleven.   The Informative Mediator sends closing letters to the clients.

DESCRIPTION OF THE INFORMATIVE MEDIATION PROCESS

Step One.   The paralegal identifies and screens for appropriate participants. 

Many potential divorce clients know they will not go to court, and wish to settle their cases amicably.  However, there may be some issues to resolve, such as: marital and separate components of assets to be teased out, perhaps earnings on those separate assets to be calculated, stock options to be valued, properties to be appraised, some haggling over an amount and duration for alimony, a custodial schedule to be discussed and worked out and child support to be calculated.  Perhaps even a business or professional practice to be valued.  Some of these individuals merely need guidance. 

When a prospective client calls the office, the first and most crucial step is for the experienced paralegal to discuss The Four Ways of Divorce with that person, to determine whether he or she needs to stand up for himself or herself through litigation, whether the process must be an adversarial negotiation, whether the client and his or her spouse may be good candidates for mediation, or whether the client and his or her spouse may truly both want to settle amicably out of court, but one or both of the parties needs an advocate to give voice to his or her concerns through collaboration.

Questions must be asked regarding feelings of safety, the ability to discuss concerns on an equal basis, any previous proceedings involving physical abuse, and whether there are any mental health or substance abuse issues.  While no one of the above concerns per se rules out mediation, the mediator must have the experience and expertise to properly conduct a mediation involving any such circumstances.  If questions arise related to an individual’s ability to meaningfully participate in mediation, collaboration may be an option for those who would have an even more difficult time handling the rigors of litigation.

The first individual to discuss the process with the paralegal is told to ask his or her spouse to also call the office, so the same information can be conveyed, and so there is no perception that the firm somehow has the interests of the first person at heart.  During these calls with the paralegal, the paralegal merely discusses how the mediation would progress, but does not ask for details of the situation, and does not convey information to the mediator, so as to avoid the creation of any bias or preconceived ideas on the mediator’s part. 

Step Two.   The paralegal sets the initial appointment and sends the clients a Topics List.

An initial appointment is set, blocking three hours on the calendar.  The initial session is usually about two and one-half hours long.  A comprehensive Topics List is sent to the clients in advance of the meeting for them to consider.  A purely facilitative mediator might say that “if the clients didn’t think of an issue the mediator shouldn’t raise it,” due to worries of “interfering with the clients’ self determination.”  Conversely, the very purpose of Informative Mediation is specifically to let the clients know what they need to think about, such as mortgage interest deductions, any capital loss carryovers, life insurance and estate planning, the division of any flex fund benefits, the meaning and choices within boilerplate language, along with the usual basic concerns such as custody, visitation, support and the division of retirement and other marital assets.  The clients are then free to decide themselves how they wish to resolve these important matters, with the assistance of the mediator.   

The more matters the clients can discuss and agree upon together, and the more prepared they are, the less time-consuming (costly) the mediation process will be.  The clients are each told that if, however, discussion of any hot button items causes discord, they should save discussion of those matters for the mediation sessions, and in any case, to never discuss substantive issues in front of their children.

Step Three.   The Informative Mediator conducts the Initial Session.

In the reception area the clients will each fill out Intake Sheets which include screening questions.  Once these are completed, the paralegal will bring those sheets back to the mediator to review.  The mediator reviews this information as the clients are given and review the Agreement to Mediate, while still in the reception area.  If any concerns arise as a result of the mediator’s review of the written screening questions, the mediator must address them.  If the paralegal is knowledgeable and spoke in advance to both clients, concerns will rarely arise once the clients are in the office.  The mediator will then bring the clients (and drinks for them) into the room to begin the process.  The session may be conducted in the mediator’s office with the mediator behind his or her desk, or at a large table.   

A. In the Informative Mediation model, as in all models of mediation, during the initial session the mediator describes the style of the mediation and the usual progression of the process.  The mediator will state that the clients are engaged in the process of Informative Mediation, and will then describe what Informative Mediation is.  The clients will be told that during the initial session the following will occur:  the way the mediation will be conducted will be discussed, that what is typical in terms of numbers of sessions for the process and what typically is done in each session will be discussed, that the clients will go over and sign the Agreement to Mediate with the mediator, that the mediator will then ask some brief background questions, that the Topics List will be addressed, that determinations will be made of any need to collect further information, and that appropriate referrals may be made to neutral professionals who have a trusted relationship with the mediator to assist the clients in obtaining that information.  These points are described more fully below.     

In addition, the mediator should also make clear that he or she does not represent either party or both parties, that it is unethical for the mediator to advise either or both parties, and that he or she can not and will not be filing the actual divorce suit when the mediation is concluded.

1. In Informative Mediation the clients are told during the initial session that most simple Informative Mediations can be completed within three to five two-hour sessions:  the initial session described in this article; a second session to go over information which has been collected, to discuss various actions and individual goals based on that information, and to look at and resolve any differences; and a third session to clarify all agreements reached so as to prepare the Mediated Agreement, to discuss the actual filing of a divorce case, and to go over the meaning of the boilerplate language which will be included in the Mediated Agreement and the choices within that language.  If the situation is complex, or if the clients have many disagreements or difficulties, the “second session” may perhaps take two or three meetings.  If a mediation is not concluded after about five two-hour sessions, the issues are either extraordinarily complex, or the case may not settle appropriately through mediation.

The clients will be told that they will pay for the time spent at the end of each mediation session before they leave, and that they will put down a deposit before the Mediated Agreement is drafted.  An advanced fee deposit may not be necessary because many individuals come in just prior to or just after their separation, when they are unsure as to how to proceed, and after the initial session they may frequently return five to seven months later to finalize matters after having completed much of the work to be done.  Others set less time between sessions and may work quickly to get their Agreement prepared.  Since there is no work which the mediator need do between sessions in the office, and the mediator does not communicate with either or both clients outside of the sessions, it is therefore appropriate for the clients to simply “pay as they go.”

In a process of trust, where there are no issues involving substance abuse, gambling or other wasting of assets, the clients may decide to buy, sell, refinance, pay off, divide and otherwise work towards a separation of their assets, even before their Agreement is signed.  If the mediation were to fail, the use of and transfer of assets can be traced and argued should the matter be litigated, without prejudice or harm to the parties.  In many cases there is no need for the clients to wait for the drafting and endorsement of an Agreement before moving forward with the final financial and physical separation. 

2. In Informative Mediation the clients are told during the initial session that they will each be fully informed as to the law throughout the process.  The clients are involved in a legal process.  The goal of that process is for the clients to sign a legally binding, enforceable contract at the conclusion of the process.  Accordingly, since each client must be informed as to “the law,” neutral information on all relevant topics is provided during the mediation.

In my practice I also invite the clients to attend the free monthly informational seminar I have been conducting since approximately 2000.  By receiving information in a general setting, any perception of bias over the contents of that information, such as information regarding how local judges typically rule in custody and visitation cases, may be alleviated. 

3. In Informative Mediation the clients are told during the initial session that “what the law is” is arguable.   Because “what the law is” can be a bit subjective and subject to interpretation and argument, it follows that competing views should be presented during the mediation for balance.  In the Informative Mediation model each client is given, right in front of the other, the information which attorneys separately representing each person would likely provide each of them.  The ethical line of individually advising must never be crossed, however, or the mediator may find him or herself in hot water.  The attorney mediator is also ethically prohibited from engaging in any sort of duel representation, and should not be advising the clients collectively, either.

Information should simply be given out in a neutral, unbiased manner.  But even if five or ten of fifteen points of law favor one client’s views, conveying that information does not make the mediator biased.  It is what it is.  The goal of Informative Mediation is that if the clients each have their Mediated Agreement reviewed by individual attorneys on each of their behalf before signing, they each receive no further legal information that they did not receive during the mediation.   By way of example, the clients may make significant provision for the post-secondary education of their children, knowing full well that their individual attorneys will tell each of them that no Virginia judge could make either of them pay for college.  The goal is for the response to be, “Yes, the mediator told us that.”

4. Because what individual attorneys working with each client might tell them relates to how the local judges have been ruling lately, the clients are told during the initial session of the Informative Mediation that there is an expectation they are asking for an evaluative component to the mediation, and that they will receive evaluative information.  The mediator of course must be qualified to conduct an evaluative mediation.  Many intelligent, computer savvy clients attempt on their own to educate themselves as to “the law.”  But the “local law” may involve Income and Expense Sheets, and local Pendente Lite Spousal Support Guidelines, which the clients will be unlikely to find on the internet.  Information regarding recent trends in local rulings is best conveyed by a mediator who is also an experienced, qualified, locally practicing litigator.

5. The clients are told during the initial session of an Informative Mediation, that if and as appropriate, the mediator may at times present a variety of options which have worked for others in similar situations, but will not unethically advise the clients to take any particular course of action.  By contrast, a truly facilitative mediator may be reluctant to suggest, for example, that if a conflict arises as to each client’s choice of summer vacation weeks with the children, some two-home families find it useful that in odd numbered years one parent’s choice shall have priority, and the other’s in even numbered years.  Or that some divorced or separated parents who get along quite well, who were married for decades, who will continue to reside near each other and who have well-adjusted older children, do quite well with a custodial schedule such as Monday and Tuesday with Mom, Wednesday and Thursday with Dad, and Friday through Sunday being alternated.   

Mediation is an art and not a science.  The mediator will call upon his or her training, experience and skill to guide the clients through the process of clarifying and deciding upon which options the clients feel are most appropriate for their situation.

6. The clients are asked if they have any questions.  The mediator will “check in” with each client after each topic is addressed, to ensure the clients understand how the mediation will be conducted.

B. The Agreement to Mediate is discussed briefly during the initial session, paragraph by paragraph, and any questions of the clients’ are answered.  Discussion of the content of the Agreement to Mediate is outside the scope of this article, but topics such as the requirement of absolute full disclosure, confidentiality and third-party involvement are addressed.  One copy of the Agreement will then be signed and given to the paralegal, who will make copies of the fully endorsed Agreement for each client.  The other two copies will be collected and reused in the future for another case.

C. The mediator asks brief background questions during the initial session, in order to gain an understanding of the clients’ situation.  Starting with one individual, each client’s age, previous states of residence, location of other supportive family members, education and employment history and earnings history will be ascertained.  The clients will be asked if their children have any special needs, and in what if any activities their children participate.  The clients may each be asked how they envision living their lives two or five years in the future.

Then the clients will each be invited to briefly state what brings them to the mediation – “Who got unhappy first?”  It is expressed by the mediator that the purpose of the mediation is not to settle who’s “at fault,” since lawyers can usually find a way to argue there is some fault on both sides, but “What is the Reader’s Digest version of what brings you here?”  During Informative Mediation discussions, however, any impact relating to fault will be discussed in an evaluative light.   

The question is asked so the mediator can ascertain and clarify where the clients each are on the denial, bargaining, grief, anger, acceptance stages of the dissolution of the marriage.  If one client is still in denial over the ending of the marriage, or if one or both of the clients are still stuck in the anger stage, the mediation will probably not succeed.  Each client is asked point blank if he or she wants a divorce, and not “just a separation.”  Occasionally this mediation session is the first time one client hears that the other truly wants a divorce.  In these cases, the initial session will often end after some discussion that one client in fact does want the divorce, because the other client has not yet had time to process this information, and to fully evaluate his or her options.  

It is important to establish that both clients are truly on board with the idea that they are getting a divorce.  It is important to ensure that one client does not feel he or she is simply working towards signing a document that won’t mean anything, because he or she believes there will be a reconciliation.  Of course the purpose of Informative Mediation is not to undertake marriage counseling or otherwise counsel the clients towards either a reconciliation or a divorce.  However, the reality of divorce must have already been achieved and comprehended by both clients for the mediation to be appropriate, and that is simply the point that must be briefly ascertained and established.