What You Should Know About Mediation

Couples ask, “What is mediation all about? If we choose that process for our divorce, what will that entail?” When David Louis speaks with prospective divorce mediation clients, he fully describes what to expect, spelling out what anyone embarking on a mediated divorce would want to know about before committing to that process. He addresses what topics are covered, deliverables, time investment, and the potential role of an attorney. He focuses on common areas of uncertainty with deep domain knowledge, expertise, and full assurance that prospective clients are in exceptionally good hands with his mediation skills.
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Having successfully helped many clients with their uncontested divorce proceeding, I outline for prospective clients all the major topics, choices, and factors in mediation that may affect their decision to enlist my help in handling their divorce process.  

Planning for children
Children in any marriage are a high priority. So, a significant focus in a divorce settlement is the creation of a joint parenting plan, a legal requirement if there are minor children of the marriage. A parenting plan has three principal parts. The first part addresses the decisions that need to be made for the children, going forward. These are significant decisions––healthcare, education, religion, activities. In mediation, I guide clients to discuss how those decisions are going to be made.

The second part of a parenting plan addresses scheduling. Where are the children going to live? When are they going to be with one parent? When are they going to be with the other parent? We talk both in terms of a regular weekly schedule and then how that schedule may be different for holidays, for school breaks, and how scheduling may be modified to allow either parent to take a vacation with the children.

The third part of a parenting plan addresses expectations for communication and behavior in terms of the future co-parenting relationship. Common sense principles are covered in a template that I supply, as a framework to be edited as it suits the couple’s needs. The parenting plan provides parents with a comprehensive, mutually agreed-upon plan that addresses decision making, parenting time, and co-parenting guidelines. Overall, I seek to put children in the center of the conversation but not in the middle between the parents.

Addressing finances
The second major area to address in mediation is what to do about assets and debts. Assets can include real estate, bank accounts, investments, retirement accounts, vehicles. Debts can include mortgages, auto loans, credit card debt, personal loans. Using the tools of my many years of work in finance and my training as a Certified Divorce Financial AnalystTM, I guide clients to examine all the financial issues that arise in the face of divorce. The two spouses, with my assistance, come to agreement about all the issues involving their family’s future financial security.

Transitioning to two households
The third area we deal with in getting a couple ready to file for an uncontested divorce is meant to answer a fundamental question: “How are we going to create two financially sustainable households going forward, where our own needs are being met and the needs of our children are being met as well?” This decision touches on legal concepts, such as child support, and also the possibility that there would be maintenance or alimony paid from a higher earning spouse to a lower earning spouse. Illinois has guidelines for this, and I bring these guidelines to the table and make sure both parties fully understand them. I also educate clients about using budgets as a mechanism for identifying needs, gaps, and resources available to one or the other spouse. 

Other topics
There are other topics that will come up in mediation sessions. We may discuss life insurance, especially because, if there are minor children, there is always a possibility that one of the parents would meet with an untimely death. What is the safety net, so that the surviving parent can appropriately take care of the children? I also lead the discussion of income taxes because children are claimed as dependents.

We often talk about pets––who are simply children with fur! Caring for pets is often expensive, and we love them and want to take good care of them. Where the pets are going to live and how their expenses are going to be managed are often topics of concern to my clients. 

Mediation deliverables
Once spouses have made decisions covering all of the important areas, my responsibility is to provide them with two documents. The first document is the joint parenting plan agreement. The second document is known as a memorandum of understanding. This document includes all the financial topics addressed. All decisions that the couple has made are included. These two documents are provided by me as divorce mediator for the purpose of filing for an uncontested divorce.

Engaging an attorney
When my clients have reached an agreement at the end of the mediation process, I recommend that they finalize their divorce by engaging an attorney. Engaging an attorney to prepare and file the necessary legal documents and get a final hearing scheduled with the court is, in my experience, the smoothest way to complete the process. I provide all documents to the attorney that they select.

I am able to provide referrals to attorneys who do an excellent job and have reasonable rates. As a Collaborative Divorce Fellow in Illinois, I refer my clients to attorneys who have experience in the collaborative divorce process, which is another settlement-oriented process. Those attorneys are familiar with the mediation process. Collaborative divorce attorneys understand that, in mediation, the couple makes the decisions, deciding what's best for their futures. Attorneys to whom I refer my clients can advise the spouse, talk about the law, and answer questions, and they will also respect the spouse’s freedom to make their own decisions. To be clear, any attorney can only represent one spouse, and the other spouse can be self-represented or can engage their own attorney, depending on their needs and resources.

People can also file for divorce on their own. However, I warn clients that some judges look upon self-represented individuals in a different way. I have found there is a higher risk that proceedings could get stalled in court when individuals represent themselves in their final hearing, and no one wants to see that happen after all the hard work that individuals have put into mediation. For these reasons, I recommend that clients are better off engaging an attorney for the final steps in their divorce process with the courts.

People also ask me about using attorneys during the mediation process. This is an important question and a very reasonable one. The answer depends on what the clients’ needs are. I believe that if either party has any doubts about decisions that are being made and feels that advice from a legal professional is needed, then they absolutely should engage an attorney, at least on a consulting basis. An attorney can meet with a spouse before mediation to establish some expectations. Clients can also retain an attorney to consult with during the mediation process or, as recommended already, can use an attorney to review the documents that I provide before they're filed with the court.

I do not require clients to have an attorney. I don't think that it's my role to tell them what they need, but I will support them in whatever decision they make toward that end. This is my orientation overall to the mediation process––I am there to help clients understand their circumstances and possibilities, using extensive knowledge and experience, to supply relevant information, to guide the conversation, and to make sure both parties have a voice and are heard. But I am not the decision maker. I give my clients that freedom, and I am told over and over that giving the client the choice of using attorneys is greatly appreciated. 

The time investment involved in mediation
Clients often ask how long the process will take when using mediation. These are my estimates for the time investment: The initial individual mediation sessions I offer each partner are typically 30 to 60 minutes. Following those individual sessions, we begin the process of joint mediation sessions. Joint sessions are typically 90 minutes, although sometimes we meet for shorter periods. I only bill for the time that we've spent.

It's hard to predict how long the mediation process will last in terms of number of sessions. Based on my experience, when working with couples who do not have minor children, we tend to complete the process in one to three joint mediation sessions. When there are children involved, it's usually between two to four joint mediation sessions.

The people who finish in fewer sessions typically have worked some things out ahead of time, or their financial circumstances may not be particularly complicated. The couples who need more sessions tend to say that they would prefer their conversations to happen with me present, rather than have unguided discussions outside of formal mediation.

How long does the full process take? From the time when I'm hired to the time when the divorce proceedings are completed in court is often between two and four months, assuming people are able to engage the process consistently, without significant breaks in scheduling. If life events intervene and scheduling is inconsistent, it can take longer.

In my experience, one of the parties may want to go faster than the other. That is totally understandable, because often one person has felt or known that the divorce would happen before the other. The other party may have come to a realization of the need to divorce later or is slower in their ability to process what is happening. I often advise the client who feels in a hurry that this process will only work if we allow the other partner the time they need. Otherwise, that partner is not going to be confident in the decisions being made. That could result in the second partner changing their mind. That circumstance tends to delay things. Therefore, I typically work at the pace of the person who needs to go slower. That invariably leads to a better outcome.
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Mediation has many facets
As an experienced divorce mediator, I take all the issues surrounding the mediation process into account. I guarantee that my clients will come into sessions with me knowing what to expect and prepared, with my help, to navigate the challenges and uncertainty ahead––taking children into account and planning to effectively move on with their separate lives.