Informative Mediation, a New Model for Tough Economic Times

This article appeared in the fall 2008 issue of Family Law News,  published by the Family Law Section of the Virginia State Bar Association.

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 udge 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 riday 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.

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. A non-lawyer mediator is prohibiting from engaging in the unauthorized practice of law. He or she may draft a “Memorandum of Understanding,” which the clients may or may not then sign on their own. A non-lawyer purely facilitative mediator may not even tell the clients whether or not a binding contract is created if they put their signatures to that document, as he or she may be concerned that he or she is “giving legal advice.”

By contrast, an attorney Informative Mediator will prepare a binding, enforceable contract, and will so inform the clients. The clients will be told that the contract can be as detailed and as specific as they would like, or as general as they would like. Together the clients can create their own separate futures the way they would like to live them.

The clients will also be informed that they can address as many future contingencies as they wish, with specificity, but will never be able to predict all the possibilities which may occur. For example, in discussing the maintenance and repair of a marital property to be listed for sale or held in one client’s name for some period of time, there could occur a basement flood which may or may not have been due to the negligence of the occupant, who did not turn off the outdoor faucet before the pipes froze and burst, or a tree could fall on the home. Provision may be made for repairs to be shared if not due to the negligence of a client, but not everything may be foreseen.

The difference between binding provisions and aspirational provisions will also be discussed. If the clients wish to include aspirational provisions in areas such as agreement on extracurricular expenses for children, the payment of college expenses, and the filing of joint tax returns provided they can agree as to the allocation of any refund or further liability, they must understand that if they do not attain that aspirational goal, the provision is not legally binding.

E. The remainder of the initial session is then spent addressing each item on the Topics List. The purpose of spending a minute or two on each of the thirty or so topics is not to see “What the clients have agreed to” or what they are each hoping for, but to ascertain whether: 1) the topic even applies, such as whether there are any investment properties or businesses, 2) whether the clients have already reached agreement on the issue (without yet getting into what that agreement is), 3) whether the clients would like legal and/or evaluative information on the topic, 4) whether the clients would like for options to be presented for the resolution of the topic, 5) whether more information should be obtained before the topic can be resolved, such as values for a former marital home and other assets, or 6) whether the topic will require some work if it is to be resolved.

The mediator and the clients will then have a clearer idea of the conflict level, and of how the mediation will need to progress.

F. The Informative Mediation Model considers the restructuring of the family as a whole. Adversarial litigation and negotiation do not typically address the overall needs of the restructuring of the two-home family, nor many of the individual needs of clients with or without children. Informative Mediation is a more holistic process. Accordingly, it may be suggested that the clients obtain further information and/or advice from other individuals, as described below, before ecisions can be finalized and an Agreement drafted.

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.” For example, a first task may be to appraise the former marital home and to then consult with a mortgage lender, to see if one individual is able to qualify to refinance and buy out the other client’s equity. A mother who is still caring in the home for the children, by agreement of the parties, may need a referral to an individual who can assist her in obtaining health insurance post-divorce. To address the possible loss of support due to the death or disability of the payor, or to alleviate some concerns over future medical and financial needs, information may be gathered regarding the costs for life insurance, for disability insurance, and/or for a long-term care policy from the appropriate agents. Since it may not be the best option to designate young children directly on a life insurance beneficiary form, it may be a good idea to create a testamentary or living trust. Referral may then be made to an estate-planning attorney for the appropriate advice.

Mediation in general, at its best, concerns itself with what will work best for all involved, and not with who can grab more of the marbles. Informative Mediation in particular looks beyond the mere legal analysis, to also address the non-legal needs of the clients and children. For example, although usually not as great a need in mediation as in litigation, the clients may want to discuss the use of a parenting coordinator to assist them with communication issues in the future. In addition, one individual still struggling with the ending of the marriage may benefit from receiving a list of recommended ental health therapists from the mediator.

Significantly, in cases where overall tax consequences and professional fees can be minimized, the parties can meet together with a licensed financial planner trained in divorce concerns and alternative dispute resolution, so as to mutually evaluate various financial scenarios. These appropriately trained professionals, with guidance and explanation from the mediator, can perform strictly financial analyses such as the calculation of values of marital and separate interests, can analyze the various ways in which stock options could be valued and/or divided, and if requested, can calculate the appreciation over certain time periods of various separate financial contributions to hybrid marital assets.

In the offices of the financial professional, a defined benefit pension plan can be valued, perhaps using an online pension appraiser. The financial professional will explain the choice of neutral or midpoint assumptions, for the values of certain variables which must be input. NADA motor vehicle values may be added into the summary of the financial professional. Individuals may obtain a single (not inexpensive) formal business valuation, so as to avoid paying two adversarial hired guns who may skew their results somewhat one way or another.

The financial professional can prepare a useful and trustworthy short summary of the various assets in a high asset case for the mediator and the clients, can analyze the tax consequences, and can describe various options for the division of those assets, taking the wishes of the clients into account. For example, if one client wishes to stay in the former marital home and not pay out half of the equity to the other, appropriate offsets can be suggested and recommended by the financial professional. This summary, and the suggested scenarios for division, can then be used during the mediation sessions. However, if the marital estate is not complex, the assets can be valued and divided during the mediation sessions without an analysis by a third party financial professional using the financial statements.

The clients must be made to clearly understand, however, that if a proper financial analysis is recommended but not undertaken, they are simply agreeing on arbitrary numbers, and must assume the resulting consequences. Their Mediated Agreement will so state. In the Informative Mediation Model it will not be tolerated for one individual to state that he or she has created a spreadsheet of values “equalizing” a division of assets. Any representations of asset values, of an equalization or of offsets must be neutrally verified. Otherwise, the clients are simply “agreeing on a number.” It is permissible, however, for the clients to simply “agree on a number,” provided they understand their options, and the fact that that number may not be the number one of their attorneys might argue for if the matter were to be litigated.

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

Once the necessary information has been gathered, including capital gains tax consequences such as for the sale of an investment property, or the tax consequences relating to the sale of the former marital home more than three years after the separation and equity paid out to each, discussion is had over the simple and the difficult topics. Much of the Topics List will often be easily disposed of, such as who will provide health insurance and for how long.
In other areas, the number of choices for resolution may be limited, and after brief discussion agreement will be reached. These areas may include topics such as the division of unreimbursed medical expenses for minor children, and the distribution of the household furnishings.

Then the real work will be done as the mediator calls upon his or her dispute resolution abilities, obtained perhaps through coursework, certification and experience, to assist the parties in reaching agreement in the more difficult areas. The purpose of this article is to describe the Informative Mediation process, and not to address the ways in which mediators are able to bring clients to resolution. That topic is not addressed herein. I will note, however, that individuals who truly wish to resolve their divorce through nonadversarial mediation will find a way to do so, especially if guided by a competent mediator.

Step Five. The Informative Mediator writes down the points of agreement, usually during the last session.
Interim notes may perhaps have been made during the sessions regarding the resolution of discrete subjects, but adjustments may have occurred over the sessions. Once all is resolved, a final session will be devoted to clarifying the agreements reached, and the mediator will make note of these decisions. Some mediators prepare a sort of a “rolling draft” of an Agreement, and update that Agreement after each session, along with billing the clients for the preparation of notes. It may not, however, be necessary to impose such costs upon the clients. Instead, a deposit may simply be requested for the drafting and preparation of the Agreement once almost all, if not all issues have been resolved.
For most topics the mediator’s notes need not be lengthy, as the notes will probably refer to certain previously drafted options set forth in the lengthy template of the attorney’s form model Agreement. There are only so many ways to describe, for example, the division of extracurricular expenses for the children, and whether that division is aspirational or enforceable.

However, whatever rough notes the mediator has prepared should not be given to the clients, nor to any attorneys down the road should the mediation fail, in order to protect the confidentiality and integrity of this model where attorneys are not directly involved in the mediation process itself. This is important because individuals often take and should feel free to take conciliatory positions in mediation that they would not take in an adversarial process, and should not fear that their words could be used against them later on.

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.
Boilerplate provisions are important. That is why such provisions are included in agreements of like type.
The clients should know what provisions such as “Waiver of Equitable Distribution” or “Incorporation of Agreement” mean. A reconciliation paragraph should be discussed, as should whether the clients wish to include a Waiver of Estate provision or a Right to Inherit provision. Procedures for future modification should be explained, regarding either modification of the Agreement, or modification of the court order incorporating the Agreement. Whether or not the Agreement should include provisions for attorney’s fees for the divorce and for any post-divorce modification proceedings should also be addressed. Boilerplate does not mean unimportant, and it should not be assumed that the same language is appropriate for every Agreement.

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

During the process, discussion will be had regarding which client will file the actual divorce case, and how the attorneys’ fees will be paid. The mediator may have another attorney on his or her team in a different law firm willing to file the divorce case at a lower rate, due to the volume of the referrals.

When the court papers are issued after a divorce suit is filed, terms such as “Summons,” “twenty-one day time limit,” “default judgment,” “such other and further relief,” “Acceptance of Service/Waiver of Notice,” “deposition,” “ore tenus hearing” and “20-60.3” will pop up. Future concerns of the clients’ should be alleviated by an explanation of what is to come, along with explanation of the mechanics of how any retirement order will be submitted for entry and then sent to the administering entity for implementation.

Step Eight. The Informative Mediator drafts the Agreement.

The initial draft should be prepared from a standard form each time, and not from Agreements prepared for other clients, so as to avoid tech savvy clients from “mining” the document and discovering the identities of any of the mediator’s other clients. The first names of the clients may be used instead of “Husband” and “Wife,” and the term “we” may be used instead of “the parties.” Much of the “whereas” and “heretofore stated” terminology can be dispensed with.

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

The Agreement should not be sent to the clients as a Word document or other attachment, so as to avoid any temptation on the part of a client to alter the Agreement. The document should be scanned and sent as an attachment which can not be readily revised, such as a .pdf or .tif attachment, with stern orders not to make any changes. The clients should also be instructed to verify that no changes were made before signing.

Usually the finalized Mediated Agreement is complete once drafted, and could be signed by the clients. Four copies should ultimately be signed, so that each client has a fully endorsed copy, one copy can be used for the divorce suit, and one copy should be sent to the mediator for his or her files.

Occasionally, minor bits of information are still missing once the initial draft of the Agreement is prepared, such as the beneficiary amount on an existing term life insurance policy, or one last number to be ascertained. The mediator will have explained that these small items can be discussed by the clients, and one client can email the missing information to the mediator, copying the other client, so as to avoid the mediator entering into a dialogue with just one client. A finalized Agreement can then be sent out.

If the clients wish to suggest revisions, any such revisions should only be made on the mediator’s hard drive version of the Agreement. It is not unheard of for the mediator to receive from the clients revisions tracked on a document which had been sent as a scanned attachment, but any revised document should be prepared entirely by the mediator, and not by “accepting” any changes “tracked” on a client’s copy.

When the final Agreement is sent to the clients, the letter accompanying the Agreement will state that each client should feel free to have the Agreement reviewed by an individual attorney on his or her own behalf. If the clients do so, and if they each receive no new legal information that they did not receive during the course of the mediation, the Informative Mediator has done his or her job.

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.

A copy of the fully endorsed Agreement should always be requested from the clients, so the mediator can verify that the clients did not alter the Agreement on their own. After receipt of the signed Agreement, letters closing the file can be sent.
However, if the Agreement contained language regarding the division of retirement assets, the Informative Mediator may then prepare language for the orders which effectuate the terms of that Agreement. Military and other retirement sections of the Agreement may have been drafted by a retirement benefits specialists after a conference call with the clients. That individual may have emailed the language regarding the retirement benefits to the mediator to be inserted into the Mediated Agreement. That same individual can then prepare the language for the orders, transmittal letters and military DD forms, under the supervision of the attorney mediator, once the Agreement is signed. Or the attorney mediator can prepare the documents and have QDROs preapproved by the Plan Administrators. These orders and documents are then emailed to the clients, who can then forward them on to the divorce attorney to finalize.

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

nce all work is completed, the clients should each be informed in writing that their file is closed.

Conclusion

The process of Informative Mediation well serves clients who wish to resolve the issues regarding the dissolution of their marriages amicably, respectfully and efficiently. Informative Mediation is best conducted by qualified practicing attorney litigators, with highly trained support staff and well-developed teams of supporting specialists familiar with the process. Through Informative Mediation, rational and respectful individuals can privately create specialized and detailed futures for their two-home families, at less overall cost.

Although the above mainly address the use of Informative Mediation to resolve divorce issues, the process of Informative Mediation lends itself well to any other area of dispute, and not only to the mediation of family disputes.