About the Divorce & Custody Process
What is mediation? Why use mediation?
Mediation is a process in which a neutral facilitator helps parties to resolve disputes. Mediation can be an alternative to litigation or part of a process that includes litigation. It can be either voluntary or court ordered. The mediator's role is that of an objective third party, an experienced, trained facilitator who provides structure, ground rules, and guidance. With divorce, mediation can address both your custody issues and property settlement. The goal is an agreement that respects the needs of both parties as well as the needs of any children involved.
Mediators do not make decisions for the parties (as might a judge or arbitrator) nor do they advocate for a particular person or position or advise of legal rights (the role of the attorney.) Mediators may, however, suggest options based on their experience with a wide range of cases. They may also provide guidance as to the developmental needs of children at various ages, and how such developmental needs may impact parental decisions.
Our style of mediation is collaborative: we have you sign releases so that we can consult with your attorneys; we provide drafts to attorneys on request; we never allow clients to sign property settlements until reviewed and approved by their attorneys. In cases of impasse, we write up summary statements, on request, on the issues that were agreed to, what we perceive as the causes of the impasse, and suggestions for possible resolutions. With "move-away" cases, where one parent is relocating and the other parent has filed a motion for the kids to remain, we work with the parents to develop a detailed and balanced plan so that all the court has to do is rule on residential and non-residentialâ€¦ at which point the parents have already negotiated all of the specifics.
Mediation is a confidential process, and mediators cannot serve as witnesses in court for either party. Information obtained in mediation is not subject to subpoena. There are certain exceptions to these privileges: information regarding child abuse; crimes committed during the mediation; express intent to commit a crime.
Why choose mediation?
As therapists and mediators who have worked with hundreds of families over many years, we believe that there are benefits to the mediation process. First, it is less costly both financially and emotionally. Parties participate in resolving their own problems. Mediation is flexible enough to cope with the unique needs of each family, rather than a computer generated one-size-fits-all parenting plan. Mediation promotes problem-solving skills and autonomy, and respects privacy. When custody issues are involved, mediation is a process that teaches practical communication and cooperation skills that can then allow parents to function with less discord while focusing on the needs of their children. With a unique parenting plan that respects the needs of your children and their parents, as well as the traditions of extended families, future disputes are less likely.
What happens during the mediation process?
We generally meet separately with each individual to get some history, answer specific questions, and start to build agendas. If the process is particularly amicable, individual sessions may not be needed. We provide clients helpful "fill-in-the-blankâ€ť handouts to help guide them in creating a parenting plan that reflects the needs of both children and parents.
In cases when the issues are narrowly defined, or where there is intense animosity or conflict, we may continue to meet separately with each party and delay joint sessions. We have conducted negotiations in which the parties never met jointly, but that is unusual. We have also conducted long-distance mediations via phone and e-mail. It is, however, difficult to establish trust when we have never met face-to-face, so we encourage at least one session 'in person.'
If we believe that one or both of the parties are not negotiating in good faith, we may elect to terminate the process. At that point, clients have the choice of litigation or selecting another mediator.
What if we want to mediate both custody and property?
We regard custody and property as separate and distinct issues. If parties intend to mediate both custody and property, we start by developing a parenting plan. We may gather some financial data during this time period, but we do not do parallel mediations. Once custody is resolved (or we have reached an impasse), we then tackle the property issues. While clients generally sign their parenting plans, we do not allow clients to sign property agreements without first having them reviewed and approved by attorneys.
What do we need to bring for property mediation?
When mediation is property focused, we require documentation of assets and liabilities. Many attorneys have already directed clients to complete inventories that include retirement benefits, bank accounts, stocks, mortgage balances, home equity loans or second mortgages, cars, personal property, etc. We also need listings of all credit card debt, car loans, educational loans, as well as other outstanding debts. It can help to list the contents of the home, room by room.
Given the complexity of regulations covering various retirement accounts, account transfers, tax implications, etc., research is often required prior to negotiating. We may advise parties to consult with an accountant. After agreements are reached, each party is provided a written copy to have reviewed by their respective attorney. As stated previously, property agreements are never signed or finalized until attorneys have reviewed them.
What if we don't have an accountant or financial planner?
We often collaborate on complex financial aspects of mediations, especially where issues of taxation can impact the division of assets, with financial consultants here in Lawrence. When we do such collaborations, clients are responsible for their fees as well. We never do this without your approval.
Can you help us divide our personal property?
Separating bank accounts, equity or retirement funds can be fairly straight-forward. However, even though the financial value of personal possessions can be far less, we often place a higher emotional value on the things we cherish. Separating personal possessions can be an intense, emotionally charged process. On client request, we will supervise and structure the division of personal property. We first discuss the different ways to divide property, ask clients to make lists of what they believe would be both fair and practical and determine a system. We will even go the client's homes to help to finalize the division. This always involves a mediation team, and we generally schedule 2-3 hours. With this service, however, a process that could take months can be completed in a week or two.
Where do we go for appointments?
Appointments are held at a home office in Lawrence, Kansas, a setting that provides our clients a high degree of privacy and confidentiality. The office suite is on a lower level and contains a private waiting room where each party can remain if and when we separate to work on individual agendas.
Do you have evening or weekend hours for appointments?
We will schedule evening appointments 1-2 evenings per week but cannot guarantee that every appointment will be able to be scheduled in the evening. We will sometimes schedule Saturday appointments but generally reserve them for extended or out-of-town mediations (3 hour block minimum.)
Do I have to be in the same room as my ex?
We've completed mediations (both custody and property) without the parties ever meeting together, but they are the exception. In general, if parents will have to co-parent for 10-20 years, it is helpful to learn how to tolerate minimal communication with some degree of civility and respect. We see mediation as a safe space to begin the process, and to practice essential communication skills with our guidance and direction. As mediators we try to model the kind of communication required to co-parent.
We have office rules, such as no demeaning or threatening physical gestures or language. We control interruptions and non-constructive responses. If one party is becoming agitated or verbally attacking, we separate the parties. While there is some latitude, consistent failure to respect basic rules of courteous communication will result in early termination of the session or the mediation process.
In situations where there has been domestic violence, mediation may not be appropriate or separate mediation sessions may be required. If we, as mediators, feel that one party is not able to represent their own interests due to intimidation or fear, we will not continue the mediation process until consulting with attorneys. In some circumstances, we have completed mediations with attorneys present to provide both legal advice and a balance of power.
Who is involved or informed in a mediation process?
This is often a matter of mediation style. Some mediators believe in maintaining a completely confidential process in which no information is ever shared until and unless an agreement is signed.
Our mediation style is more collaborative. We want our clients to reach agreements in order to avoid prolonged and costly litigation. We have found that it is more practical to be able to discuss issues with attorneys, request input, even ask attorneys to join in the process when we are stuck. All clients will be asked to sign releases so that we may consult with attorneys and inform attorneys involved of progress being made. We also invite attorneys to participate when dealing with complex property issues.
In custody cases, we may also consult with the parent's therapists, children's therapists, other relevant adults in the lives of the children, grandparents or extended family members, step-parents, etc. Such consults are done only with your signed release.
We respect the insight and needs of children, and try to include them whenever appropriate. We do so because agreements tend to work better when all parties involved have had some voice in the process.
How long can it take?
The actual length of time of the appointments is flexible, although 1-2 hours is about average per appointment. Many agreements are reached during a span of 2-5 appointments, although others may take longer. In circumstances where one parent is coming from out-of-state, mediation may be scheduled for longer blocks of time over 2-3 days, or even a weekend. If mediating both a parenting plan and property settlement, mediation will, of course, take longer. In our experience, however, mediation is always less costly and less time consuming than litigating the same issues.
What if we don't reach an agreement?
Mediation can conclude with complete agreement, or partial agreement, or in impasse (no agreement.) Most parties reach some agreement. As mediators, we will take notes and record agreements that are reached. If we reach an impasse, we inform your attorneys and the parties then proceed with litigation. If some areas have been mediated and partial agreements made, we can write up a summary of the issues, what has been agreed to, and where we see the blocks. If you do end up in court, mediators cannot testify. The mediation process remains confidential.
If we reach an agreement, when does it take effect?
Agreements are legally enforceable only after being journalized (which your attorney will do). In matters of custody, however, many families choose to respect their agreements from the date of initial agreement rather than wait possibly months for a court date. With property, many clients start taking the necessary steps during the mediation process, whether dividing up household possessions or removing each other's name from car titles. We advise clients to consult with their attorneys before taking any actions.
Once a mediator gets to know us and our circumstances, can we come back if we get stuck?
After concluding a particular mediation, the mediator may serve as a resource in resolving future disputes between the parties. Many families consult their mediator to re-negotiate issues as they arise. We have many families that return to us annually for one session to finalize summer plans, vacations, etc. Custody agreements often evolve and change as children mature and their needs change. It is highly unusual for a parenting plan to remain the same from early childhood through the high school years. We believe that parenting plans need to reflect the real circumstances of real families, not a computer-generated "one-size-fits-allâ€ť plan. We respect our clients, and how difficult co-parenting from two homes can be. Mediation can provide a safe place to talk about tough issues.
If we do successfully mediate a parenting plan and property settlement, do we have to use attorneys? Can't you just file the papers?
We highly recommend that anyone involved in a divorce seek legal counsel, or, at a minimum, consult with an attorney to review their final papers. As mediators we never file papers with the courts as that would be, in effect, acting as your attorney. We often work with people who are representing themselves ("pro-seâ€ť) and they are responsible for filing their own paperwork. But, bottom line, we recommend seeking legal counsel.
What is co-mediation or team mediation?
Domestic mediation can be tricky. It's a challenge to stay neutral, to resist the draw to agree or disagree, weigh credibility, take a side or position. We've found that team mediation is a preferred way to manage high-conflict cases... or even cases with an average amount of intensity and animosity. Having a male/female mediation team provides balance, minimizes triangulation, generates more thoughtful analysis and discussion of the issues, and provides clients with a model of how to communicate their positions and perspectives. It's also more expedient and cost-effective, as we separate to caucus with clients and push each other to keep the process 'on track' and to stay solution focused. We have found that the additional brain, ears, eyes and skills makes the process more effective.
What is the difference between mediation and therapy?
Mediation is not therapy. Our goal is to generate equitable and workable solutions, not to resolve the emotional pain that accompanies marital dissolution. We are very supportive of therapy, but ethical constraints prohibit providing both services to an individual client or a couple.
At the same time, the issues the bring people to mediation are often painful and challenging. We try to be respectful of the intense emotional struggles that clients may experience. If a client is unable to continue a particular session, we take a break or reschedule. We may offer suggestions for coping, and often make referrals to therapists.
Since Susan is also a therapist, her mediation style integrates components of solution-focused brief therapy. This has proven to be very effective in reaching compromise and "solutions.â€ť