Before couples decide the best course of action when separating, it is helpful to know the essential steps of the mediation process. Divorce mediation is a popular process used by couples who want to avoid a costly and lengthy divorce trial, especially since less than 5% of divorce cases actually end with a ruling from the Judge. This means that 95% of litigated cases end in a settlement after they have spent on average 2+ years in court and having spent 33% of their net worth on legal fees. We believe the smart thing for divorcing couples to do is to work in mediation to create their own plan for their futures and thereby saving a huge amount of money, heartache, and time.
With the guidance of Scott Levin and San Diego Divorce & Family Law Mediation, you have control over what the outcomes of your divorce are for you and your family. While mediation may look different for everyone, there are 8 steps to know and take to have the most successful mediation.
- Planning & Understanding: Now that your interest in mediation has piqued, it’s important to ensure that both you and your partner understand the process and how it differs from litigation. Understanding what you are hoping to achieve and educating yourselves about how to achieve these goals are keys to success. If you are not in a place where you feel you can have a conversation about mediation, it can be helpful to consult with a couple’s counselor. Before moving forward with the process, discuss your concerns with one another, research more about the ins and outs of mediation, and begin browsing for a mediator.
Finding a Mediator: Mediators have different levels of experience, skill sets, and backgrounds and so it’s important that you take the time to find a mediator that really fits with you and your spouse. You need to believe that your mediator wants to help you and is in business for the right reasons. We believe that the best mediators are those who practice full-time as mediators as opposed to litigators who also mediate. We believe that the best mediators are also Certified Divorce Financial Analysts as they understand the complex financial issues surrounding divorce. And we believe that the best mediators are family law attorneys with years of prior litigation experience. That is exactly what you will find at San Diego Divorce Mediation & Family Law. When searching for the right fit, most mediators will be happy to spend a few minutes speaking with you, at no charge, to explain the process and answer any questions you may have. Be concerned however if the mediator agrees to do this outside the “room” of the other spouse. Mediators must be neutral and this is why San Diego Divorce Mediation & Family Law does not offer consultation to clients unless both spouses agree to be present for that call, zoom, or meeting together. If the mediator speaks with you alone in a substantive way, they will certainly speak with your spouse alone and cannot be trusted to serve neutrally. Here are some questions you can ask a mediator to see if they are the right fit for you:
- What is your style of mediation?
- What does your availability look like? How far in advance do you schedule meetings?
- Will you be preparing, filing, and processing our divorce paperwork for us or will we have to figure that out on our own?
- Do you take a retainer up front 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?
Mediators should be equipped to navigate interpersonal dynamics with ease so that you both feel heard and validated on all issues. When you choose a mediator, be transparent and open about what you are looking for so that they share what they can offer you. Your mediator is on both of your teams and will be looking out for all of your best interests. Read our 50+ 5-star reviews from real clients on Yelp and Google to get a sense of how Scott Levin works with parties. There is a reason so many cite his compassion and care and skill in helping them resolve their cases.
Preparing Information: Prior to or directly after your first meeting, your mediator will ask for a series of documents to assist you in dividing property and debts, child support, and any other finance-related items. So that you may focus more on mediation without having to worry about finding certain documents, try to gather as many as possible before beginning. If your spouse has access to all of them, be sure to ask for access or copies of any documents that may be relevant. Without understanding what you have and when it was acquired, it can be difficult to devise a fair agreement. It can even be helpful to work together in creating a shared electronic folder so that you both have access. Below are some common documents you may want to locate:
- Federal and state tax returns
- Pay stubs
- W-2s and/or 1099s
- Partnerships and other business interests’ valuations
- Real estate property valuation (it’s okay if you don’t have this yet)
- Kelley Blue Book value on automobiles
- Savings, checking, money market, and CD account records
- Non-retirement investment statements for stocks, bonds, secured notes, and mutual funds
- Executive compensation records, including stock options, restricted stock units, or other executive comps
- Retirement account and pension statements
- Annuities, IRAs, and deferred compensation records
- Life insurance policies
- Credit card and line of credit records
- Health insurance information
- Mediation Session: Once you have consulted with mediators and agreed on the best fit, you will begin the mediation sessions which should take place weekly to help keep the momentum going forward. During these mediation sessions, the mediator will review your financial assets and debts and begin to help lead you through discussions about how to equitably divide your property. Once you have a plan in place for your asset and debt division, you will also need to make decisions regarding parenting, physical and legal custody, and to run the figures for child and spousal support. Some mediators may take some time to explain any laws applicable to your circumstances, as well as the many issues you will be discussing. If you are ever unclear about what is being shared, do not hesitate to ask the necessary questions or even consult with a legal advisor regarding specific issues. Once you and your spouse have made decisions on every aspect of your divorce, the mediator will draft your Marital Settlement Agreement which is a legal document that contains all of the agreements made during the weekly 90-minute mediation sessions.
Determining Non-negotiables Once you have an understanding of what you will be discussing in mediation, spend some time reflecting on what items are non-negotiable and most important to you. Are there certain things you would have a hard time living without? What are you willing to compromise on in order to maintain what’s valuable to you? This is a really important step so that when you come into mediation, you can put all your cards on the table and avoid prolonging the divorce and incurring more fees. This step can involve your children as well, as they may have input regarding what is important to them.
Discussing the Details: Depending on what you and your partner are looking for and the complexity of your divorce, the number of sessions you have may vary. It is your mediator’s goal to help you reach an amicable resolution as soon as possible so much of your progress will rely on your willingness to be open and find a compromise with your counterpart. Your unique family needs will guide what you discuss in your sessions which includes, but is not limited to, financial mapping and planning, division of property and debts, spousal support, parenting issues including time-sharing, child custody, and child support. Many of these details can be confusing and meticulous so your mediator should take the time to ensure you have a full understanding of the intricacies of all that you discuss and include in your final agreement.
Consulting a Legal Advisor: Once the Marital Settlement Agreement is drafted, it can be helpful to consult with separate legal advisors like CPAs and consulting attorneys who are invested in your individual, best interest. Regardless of how many times you meet with the mediator, that person should not be advising you on your particular legal objectives and rights. And thus it can be helpful to consult a legal advisor before signing the Marital Settlement Agreement.
Signing the Final Agreement: Once the parties are able to reach a settlement on all issues in mediation (whether it requires two sessions or ten), the mediator will draft an agreement that memorializes all the terms. The proposed agreement is then reviewed by both parties and they are encouraged to have it reviewed by their independent attorneys. Once the parties and outside counsel have reviewed and accepted the agreement, the mediator will prepare the final Marital Settlement Agreement and file this with the court. These documents become part of the official divorce judgment, meaning that a court could potentially enforce them if either party is negligent. Generally, however, couples follow the agreements reached in the mediation process much more consistently than any other type of agreement – simply because the mediation process ensures that everyone is 100% comfortable with the terms.
Committing to work together to dissolve your marriage in a collaborative way may come with challenges but with Scott Levin as your mediator and by your side every step of the way, you can succeed like so many of our clients. As you embark on this journey, keep an open mind, be as honest as possible, and don’t forget to take care of yourself. Whether it is one or several issues that you are struggling to resolve, mediation is a great path to consider for you and your family’s future.