As a divorce mediator, my objective is to inform clients of all the tools and resources available to them. In that process, I am frequently asked, “If we choose divorce mediation, do we need attorneys?” The simplest answer to this question is “Yes.”
Unfortunately, a simple answer is not always a complete one. While the “Model for Standards of Practice for Family and Divorce Mediation” states that a mediator should recommend that participants obtain independent legal representation, it is also true that the standards support self-determination by participants. “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
Because I am a firm believer in the right to self-determination, I will work with clients whether or not attorneys are involved. However, in my initial consultation with clients, we discuss the valuable role that attorneys can perform in the mediation process.
In short, clients have a choice. They may decide, in spite of what I (or any mediator) may recommend, that they do not want to obtain the services of an attorney. Some divorce mediators will not work with couples unless each spouse engages the services of an attorney. Because I am a firm believer in the right to self-determination, I will work with clients whether or not attorneys are involved. However, in my initial consultation with clients, we discuss the valuable role that attorneys can perform in the mediation process.
How Attorneys Can Assist the Mediation Process
A primary goal of my divorce mediation process is informed decision-making. Providing legal information to clients is a neutral step that I take at the beginning of any mediation. However, an experienced divorce attorney can assist a spouse in making informed decisions by offering legal advice that is based on full understanding of the law and how the spouse’s circumstances would be treated in court.
During the mediation process, some clients may desire to have their attorney(s) present to offer real-time support and advice. When mediations are “attorney-assisted,” the mediator continues to control the process, while the attorneys assist in promoting understanding. As a trained collaborative professional, I see attorney-assisted mediation as an opportunity to create an interdisciplinary team that promotes outcomes acceptable to all.
Another option that can be beneficial (and usually more economical) involves clients engaging an attorney in a “consulting” capacity, meaning that the client can receive feedback and advice about what has happened in mediation sessions to be better prepared to negotiate effectively with a spouse at the next session.
An Attorney’s Role at the Conclusion of Mediation
When the mediation process has concluded, and the mediator has prepared a written document that includes all of the mutually agreed upon decisions that have been made by the spouses, either or both may engage an attorney in the capacity of “review attorney.” In this role, the attorney can independently discuss these decisions and confirm with the client that s/he truly believes that the agreements reached in mediation are in her/his best interest.
In addition, since the granting of a divorce is a process that must include the court, the services of an attorney will often be engaged for purposes of preparing the legal documents to be submitted to the court. While some clients may decide to do this on their own, it can be a tricky undertaking and may be best given to a legal professional.
I am often asked for referrals to attorneys who may act in any or all of the roles listed above. Since divorce mediation is about two spouses developing their own plan to meet their needs in a life transition, I favor attorneys who understand mediation and support this concept of self- determination. Many of my referrals are made to collaboratively trained attorneys, as there are many parallels between the collaborative divorce process and the mediation process.
The divorce mediation process offers an opportunity for choices to be made freely, and this includes what resources are used to help create mutually acceptable plans. When it comes to thinking about the use of attorneys in the divorce mediation process, the answer is not as simple as “Yes” or “No”. The more pertinent question may be “Why?”
We’ve established, in the previous blog, that it’s a good idea as you consider divorce to put together a budget to begin planning for your separate financial futures. Now let’s talk about the tools you’ll need to accomplish that, and then look at some tips that can keep you from losing your mind in the process!
I. The Budget Worksheet
When I work with clients, I tell them to think of a budget as a list. There are two parts to this list:
The first part of the worksheet addresses sources of income, which may include the following:
Additional deductions from a paycheck are included in the expenses portion of the worksheet. Some deductions may be changing, and others may be optional (like retirement savings).
After taxes are deducted from gross income, you will have an estimate of the income available each month.
The second part of the worksheet covers expenses. These are the categories I use for adults:
The children’s budget—an important tool for discussion about how parents can meet the financial needs of their children while living in separate households—has its own set of categories.
II. What You Need to Fill Out a Worksheet
Your income: A paycheck (if you are paid a wage or salary) is the best source of information. If you receive other sources of income, look at the statements that detail that income.
Your expenses: Estimate expenses by looking at your bank records and credit card statements for the past year. This will give you a sense of your spending history. Many clients can access information online, as so much billing is done electronically. And in some cases, your memory may be your best friend. For example, in considering vehicle expenses, think about how often you fill up and how much it costs when you do.
The past is not the future.
Use the freedom of starting a new chapter to think ahead and adjust your priorities, estimating what it will cost to live the life you envision.
Use the freedom of starting a new chapter to think ahead and adjust your priorities, estimating what it will cost to live the life you envision. For example, if you know that your housing situation is going to change, do the research into what it will cost to rent a new place or what the mortgage might be on a new home.
Remember: expenses that applied to both of you or that applied only to your spouse will need to be adjusted to reflect your living in separate households.
Try to be accurate instead of precise.
Remember, this is a planning document, and it is also a starting point, so the numbers will change. Therefore, try to be realistic about your estimates while, at the same time, not overstressing about precision. You are not being asked to be an accountant. Just do your best.
Don’t be afraid to ask for help.
Not everyone likes to work with numbers, and my guess is most people don’t. But maybe you have a friend or financial planner or other professional who can help. There are Certified Divorce Financial Analysts (CDFAs) who specialize in this work. I am one of them, and I often help my mediation clients to develop their budgets.
Budgets are the start, not the finish.
If your future budget puts you in a hole, don’t panic—that is just a starting point. When I am working with clients, my aim is to help both understand each other’s financial futures, which may mean that one will need financial assistance from the other, either in the form of spousal maintenance (to assist a lower-earning spouse) or child support/cost sharing for children’s expenses (to make sure that children can live in two sustainable households).
Use the children’s budget to focus on their needs.
As you begin the journey ahead, use the children’s budget as a separate plan, independent of each of you individually. The children’s budget can be a valuable tool for parents to get on the same page about how to provide children with stability and to support their bright futures.
Budgeting is only part of the process of ending a marriage, but it can be an important step to begin to envision your separate lives and remove uncertainty around your own and your children’s futures. As an experienced divorce mediator as well as a Certified Divorce Financial Analyst, I can help. Contact me for a consultation.
For many of you, thinking about the word “budget” may be enough to give you a headache. Maybe that’s why, in a Gallup Poll conducted in 2013, only 30 percent of those surveyed said that they have a household budget.
If you don’t like working with numbers (and there are a lot of people like you out there), putting together a budget may seem like being asked to build a rocket ship. Fortunately, I do like working with numbers, and I’ve had many years of experience making sense of financial situations. I bring that expertise to my role as your divorce mediator.
What’s the problem?
In some households, not having a budget may not pose a problem. After all, if there is enough income to pay the bills, and no one is an extravagant spender, then no harm is done.
In other families, however, the lack of a budget can result in overspending, which usually translates into either drawing on savings or going into debt to make ends meet. Unfortunately, I find that most client debt arising from overspending goes on a credit card. That solution tends to inflict the highest interest rates.
Overspending may arise from lack of planning, and no plan may signify lack of communication. It’s little wonder that many marriages and relationships break down over money.
When households are spending more than what is earned, this creates a stressful environment. Overspending may arise from lack of planning, and no plan may signify lack of communication. It’s little wonder that many marriages and relationships break down over money.
Map out your financial future.
In divorce mediation, budgets can be crucial. The reason for this is very simple—as couples separate and transition from living in one household to living in two households, the combined expenses (particularly those related to housing) will increase significantly. And this is usually happening without the benefit of any additional income to cover the new expenses of a second living circumstance. Families that were challenged to cover expenses when living together are stretched out even more with the added dynamic of a second household.
As a mediator, I work with clients to help you talk about your transition from being together to living separately. And this requires planning, whether it relates to dividing assets and debts, parenting children in two homes, or coming up with financial support arrangements so that both partners can live as sustainably as possible in the future. As we look to the future, we use the budget as part of the plan that covers expected spending and the income available to each spouse/partner going forward. The budget is a starting point for mapping out each person’s financial future on a month-to-month basis.
Budget for your children’s needs.
In the case of parents, another important use of a budget is to allow you to determine, in a collaborative and cooperative fashion, what expenses are directly associated with your children. While some expenses are not easily allocated (housing costs and groceries), those that directly benefit children can be identified and estimated. This becomes a useful tool for crafting mutually acceptable plans for parents in providing for children’s needs going forward.
Finally, budgets can serve as a barometer to measure the outcome of direct payments of child support and spousal maintenance for those clients who opt to use state guidelines as a starting point for negotiating maintenance and child support. We look at each spouse’s/parent’s budget and then account for payments of child support and maintenance from one parent to the other. In this way the impact on each’s sustainability can be determined, which in turn can inform adjustments that are more likely to be seen as acceptable to both.
Avoid risk—Make a plan.
Divorce mediation is a series of facilitated conversations that entail a transitional journey into “uncharted waters.” Taking this trip without any kind of mapping is a risky choice. However, by doing the work of preparing a budget together, we can better identify the challenges of the future and discuss ways to manage them as best as possible.
Coming Soon: Part 2—Tools and Tips for Budgeting
I’ve been thinking a lot about these words lately--obligation and opportunity.
It started in a divorce mediation session about a month ago. The clients were discussing the concept of right of first refusal in their parenting plan. In many parenting time schedules, the parents agree that, if one parent is not available during his/her scheduled parenting time (because of a work commitment in the evening or on a weekend, for example), that parent agrees to offer the other parent the chance to have unscheduled time with the child (or children).
So in this discussion, the mother observed that one could look at this concept as either an obligation—one parent has to contact the other parent and the second parent could rearrange his/her life to be available—or an opportunity--one parent offers the other parent extra time with the children).
In that moment, I sensed that there was a pearl of wisdom in this casual observation.
And so, with further reflection, I focused on what it feels like to be obligated to take an action. Is being obligated like being controlled (often an underlying cause for a spouse to want a marriage to end)? If seen as an extension or continuation of control or coercion, of course there will be resistance and push back. Even the suggestion can create another wall between the spouses. Viewing it this way, past resentment can then impede progress in moving forward with their separate lives.
On the other hand, what about shifting this view to seeing new circumstances as an opportunity?
Through this lens, opportunity can be a gift to and from each other, given with positive intent and received with acknowledgement.
I am reminded that mediation, with its focus on the future and all that it can offer to resolve uncertainty, is a process that can explore new opportunities as a bridge to future possibilities.
As I consider these differing views, I am reminded that mediation, with its focus on the future and all that it can offer to resolve uncertainty, is a process that can explore new opportunities as a bridge to future possibilities.
Next week, many of us will celebrate Thanksgiving in a different way than usual. Many of us will gather in smaller numbers, or perhaps will not be physically present with those we love.
When I receive a call from someone who wants to know more about divorce mediation, I often hear, “I’ve never done this (get divorced) before, so I’m not sure what I am supposed to do.” We’ve never lived through a pandemic before, so aren’t we faced with this same dilemma?
Do being isolated and forced to experience Thanksgiving differently somehow suppress our spirit of gratitude? I hope not.
Do being isolated and forced to experience Thanksgiving differently somehow suppress our spirit of gratitude? I hope not.
Like many, I am thankful for the daily sacrifices of those who must work outside their homes, being exposed to Covid-19 in their workplaces and potentially exposing their families and loved ones—doctors, nurses and other health care professionals, police, firefighters, ambulance workers, teachers, grocery workers, and all others whose work is considered “essential” to our well-being.
For every step taken to create a better place for all, where opportunity and love abound, I am grateful—for every random act of kindness and efforts to “pay it forward,” to look out for one another, to acknowledge and address injustice and inequality.
I’m grateful for my mentors and trainers who have given me the tools to help others navigate the transition of divorce through dialogue and creativity. And to recognize that I was called into this profession to help others move forward with their lives.
Thank you to the clients I work with in divorce mediation and collaborative divorce cases. You have the courage to do what most people cannot—to be open and vulnerable enough to work toward a more noble result that allows for greater dignity.
I’m thankful to be trusted to help you both move through this passage into the next chapter of your life’s journey. Your courage is a gift that allows me to make a difference in the lives of others.
Whatever your plans, whatever pain and uncertainty you are facing right now, and in spite of the incredibly trying times we are living in, I hope you will have the opportunity to look within and find your own feelings of gratitude.
A comment struck me in a recent interview with Michael J. Fox, the famous actor who has suffered for many years with Parkinson’s disease. He said, “With gratitude, optimism becomes sustainable.” Here’s hoping that, in finding and expressing our gratitude, we can fuel optimism to carry us through the challenges of the present moment.
My best Thanksgiving wishes to all!
A mediator is expected to be neutral. This is particularly important in divorce and family cases, where there may be a tendency for one participant or the other to try to “get the mediator on my side.”
While I may have the skills to provide reasonable advice, I don’t do this, as any advice will most likely favor one or the other spouse. In that case I would no longer be the neutral in the process.
As a divorce mediator, I am committed to neutrality, as it reinforces the credibility of the mediation process. If either spouse in a divorce mediation does not see me as being neutral and instead feels I am taking the other’s side, the mediation will be undermined, and no one will be satisfied.
At the same time, one of my fundamental goals in mediation is to foster a process of informed decision-making. Information sharing promotes this concept.
Some information comes from clients, in the form of financial disclosure. Since marriage on one level is an economic partnership, it’s essential that both spouses have equal access to financial data. Prior to our first mediation, I provide a list of financial documents to be gathered and shared, so that, together, we can review assets, debts and sources of income for both spouses.
Other information originates from me. In particular, and especially if there are no attorneys involved in a couple’s divorce, I believe that information about the laws that apply to divorce should be available to both spouses. Since mediation promotes the concept of self-determination (the clients decide, not the court), providing legal information may seem contrary. Actually, it is simply a tool that may or may not be important to either or both spouses. They get to decide what to do with this information. It’s also my way of preparing them for a future conversation with an attorney, friend or family member where similar information may be discussed.
This is where the boundary between information and advice is established. If one or both clients are looking for advice on a legal topic about which I’ve provided information, I’ll suggest that s/he consider consulting with an attorney to meet this need. My reasoning is that any advice provided to address the needs of one spouse is inherently non-neutral.
Similarly, when we are discussing financial topics—a process that draws heavily on my background and experience—I can compile financial information, perform analytical work or help both parties create options. However, the clients need to make decisions that are in their own best interests. While I may have the skills to provide reasonable advice, I don’t do this, as any advice will most likely favor one or the other. In that case I would no longer be the neutral in the process. Instead, a referral to a financial planner will sometimes provide the needed support for a good decision.
For many couples, the financial information they are providing and I am compiling, organizing, analyzing and/or explaining, or the legal information I provide is enough of a foundation for each spouse to feel comfortable about engaging in a negotiation that will lead to mutually acceptable, informed decisions. In some cases, a referral to another professional for advice provides the needed support to an otherwise uncertain spouse. The mediation process should always be adaptable to the needs of the clients and afford flexibility and originality, creating better outcomes and futures.
As an experienced mediator, in divorce mediation I aim to promote constructive communication between the participants, in an effort to help them move toward resolution.
Effective communication can often be difficult for a divorcing couple. It’s ironic—two people, whose marriage may be ending because they couldn’t communicate well, are now faced with the challenge of talking through the details of their divorce.
I’ve benefited over the years from hundreds of hours of continuing education. Much of that time has focused on how we, as divorce and family mediators, can help our clients to have the best possible conversations in light of the hard circumstances in which they find themselves. I’ve added many tools, and my experience in working on hundreds of cases has provided me with personal insights into what can work best to promote positive dialogue.
Here are a few suggestions to foster a more productive approach to reaching agreement:
When you choose divorce and family mediation, you are opting into a process where a professionally trained neutral mediator will be there to help you follow suggestions like these for constructive dialogue. And you can certainly apply these to any difficult conversation on your own.
In any life transition, especially separation and divorce, you will be faced with the daunting challenge of making important decisions. For many, it’s hard to think ahead, to be clear about how to move forward. And yet, how decisions are made, in this time when it’s normal to feel uncertain and vulnerable, is critically important to set the stage for the best next steps in your life journey.
Structuring the Discussion
As a divorce mediator, I want my clients to be aware of and understand the full scope of topics that will be discussed in our mediation sessions. All clients are provided with an extensive outline of divorce mediation topics, which is also available here.
Introducing structure into our conversations can help us to stay focused. You may also find that some of these topics are easy to discuss on your own, saving mediation time and expense. As a mediator, I support and encourage you to work together on your own, as long as your style of communication and negotiation does not create unnecessary conflict. I always advise clients to avoid discussions that risk a setback in the overall progress of mediation. And when in doubt, it’s usually best to save the conversation for our mediation sessions, when I can help, as a neutral third party, to foster a positive climate in which this hard work of decision-making can take place.
Goals for the Process
In divorce mediation, I am committed to two primary goals that relate to your decision-making process:
While it can be very difficult to get two people to agree on what is “fair,” I find it easier for each of you to make your own determination about what is “acceptable.”
Mutually Acceptable Decision-Making
In most successful divorce mediations, the outcome consists of many decisions, each of which is seen by both spouses as being acceptable. I typically ask each of you, “Are you okay with this?” or “Can you live with this?” If the answer is “Yes,” what you are telling me is that this particular outcome (decision) is acceptable to you. If you both answer in the affirmative, we have achieved the goal of a mutually acceptable decision.
Contrast this to a conversation about fairness. Many clients will tell me that their goal is “for everything to be fair,” or “to be fair to my partner,” or “to get what is fair.” The problem with this approach is that “fair” means different things to different people. While it can be very difficult to get two people to agree on what is “fair,” I find it easier for each of you to make your own determination about what is “acceptable.” This also acknowledges a reality that, in any negotiation, there will typically be some degree of back-and-forth dialogue and a level of compromise to achieve the ultimate goal—meeting your underlying needs and interests, as well as those of your children.
When I discuss the concept of “informed decision making,” I point to two key ingredients.
Legal Information: First, divorce mediation is a different (and, in my opinion, better) process than litigating a divorce in the court system, because of the flexibility and creativity that are offered to you in mediation. At the same time, I believe that it’s important for my clients to be aware of the laws that would apply to their situation if a judge had to make the final decision because clients and attorneys were not able to agree. If you have an attorney assisting you in the mediation process, or if you consulted with an attorney before coming into mediation, you may already have this information. If you, like many clients, are participating in mediation without attorneys, I will provide you with basic information about the laws pertaining to divorce proceedings. I always tell my clients that it’s up to them to decide how to use this information in coming to their agreed-upon decisions.
Financial Disclosure: Secondly, the end of a marriage marks the end of an economic partnership. While a marriage is comprised of a complex series of relationships, it’s essential to stay focused on what it means to unwind the finances of a marriage. In some respects, this is the same as two business partners who decide to end their business relationship.
See an earlier posted discussion of the kinds of relationships addressed within mediation.
So when we are discussing how to end a marital financial partnership, we are looking at how assets acquired and debts incurred during the marriage will be divided. And we are also looking at what the needs may be to sustain two households in the future. Full financial disclosure of assets, debts and income is the process that allows both of you to have equal access to this essential information.
The Best Framework for Discussion
The divorce mediation process supports informed decision-making, by making sure that both spouses have legal and financial information. This framework for discussions then enables and empowers you to come to decisions that you both feel are acceptable, creating a guidepost for gaining more clarity about how you will emerge from this critical life transition.
Accepting that a marriage is ending can be very challenging, and the array of emotions that can prevent the final acceptance is complex and constantly changing. In divorce, the acceptance of financial realities is particularly difficult. Many clients just don’t want to acknowledge it, yet some of the most important decisions in a divorce settlement are financial in nature. After all, our basic survival needs are met by paying for housing, food and other necessities.
While many clients don’t want to acknowledge it, some of the most important decisions in a divorce settlement are financial in nature.
As a divorce mediator in both Chicago and New York state, I can think back to a time where I encountered a couple where the wife, desiring a new beginning, had separated from the husband. The husband, surprised and angry that his more than 25-year marriage was ending, was experiencing a lot of difficulty with the idea of sharing the couple’s assets, including a rather large pension. The wife was in a better place than the husband on an emotional level, but she had not considered the implications of the financial decisions she would face in her future.
The uncertainty associated with divorce extends to future expectations regarding financial security. It is especially important for couples ending a longer-term marriage to consider the implications of their decisions on their retirements.
There is a risk, as mediation begins, that a spouse who has not accepted the emotional reality that the marriage is ending is also disconnected from the financial reality as well. Whether obstructed by anger, fear, denial or depression, a lack of focus can negatively impact informed decision making.
In particular, I have found that one or both spouses may need time or more information to process the possibility or inevitability of their new financial reality. This reality can include the following scenarios:
When couples choose to use divorce mediation, they have the opportunity to take the time required to communicate and plan for their new financial circumstances. The mediation process allows for as much research and time as needed, the exploration of options, and an agreed-upon outcome that will often lead to the acceptance of a new reality created by both of you.
And in the case of the couple I wrote about above, I encouraged them to take time to process and consider their future needs. Upon their return to mediation several months later, they were more certain of their personal requirements and of their mutual desire to make their decisions in a mediation setting where they had control over the outcome.
As a Chicago divorce mediator, the initial consultation is often my first contact with one of the spouses. Typically, I’ll receive a call from the husband or wife, and we agree to meet (these days) by video conference. The one who calls me is often, but not always, the “initiator,” meaning that that spouse is taking the first step in planning a future apart.
When both spouses are ready to make decisions that center around separation—co-parenting, dividing property, financial support—we can begin a focused conversation with the freedom and creativity to develop solutions.
But what about when the broad vision of the future is not clear to both? In other words, how can mediation work when one or both of you may not be committed to ending the marriage?
As a divorce mediator, I am dedicated to client self-determination. Both of you deserve to have the most appropriate conversation for your circumstances. If I sense that one or both of you is not “on board” with ending the marriage, I will propose to open that conversation.
The term that is used for this process is “discernment.” The word “discern” has several definitions, including:
If you and your spouse are unsure where your marriage stands now or where it is going, the mediation process can help you communicate and recognize whether to continue or end the relationship.
So for the couple where the individuals are not sure where their marriage stands now or where it is going, the mediation process can help you both to communicate with each other and allow you to recognize and understand whether to continue or end your relationship.
As a family and divorce mediator, I dedicate my work to the clients’ rights to make their own choices. Having a consultation doesn’t mean you are choosing to end your marriage, unless that is what you both want to do. I will be there with you wherever you are and wherever you are going.
If you decide that a “discernment” process will be helpful for both of you, we’ll start there. If you decide that your efforts are best focused on staying married, I will offer to either assist you in creating a mediation process that will allow you to have a conversation about how to plan for staying married, with an emphasis on better communication and understanding, or refer you to a trained professional marriage counselor or therapist.
Rest assured, when considering the end of a marriage, the mediation process supports you to make the important decisions to move on with your lives. And you have the option to take the time you need to plan your next step after mediation is completed—ranging from taking no legal action to proceeding with a divorce.
“Where are we?” may be the most important first question for you to answer. The mediation process offers the flexibility to respond to your needs, whatever your answer may be.