What is divorce mediation? I’m a divorce mediator, one who earned his CPA and who understands your finances, and more importantly one who has gone through his own divorce and who learned first-hand how important it is to be able to co-parent successfully after a divorce.
Divorce mediation has so many benefits. I often tell prospective clients that mediating your divorce gives you the opportunity to choose the least expensive and least time-consuming path, while getting the best outcomes for yourselves and for your children.
But while I understand why mediating your divorce is the healthiest path, I find that many couples do not understand how divorce mediation works. This article will provide a deep-dive into my divorce mediation process so you can understand what it is, how it works and what to expect, if you choose this path for your divorce.
Initial Consultation:
Often times one spouse will reach out to me for an initial consultation. That is ok. I am happy to meet with each spouse individually or with both spouses together. The spouse who does reach out to me has either been referred to me, has read my blogs or social media posts, has done a Google search, found my business profile and read my reviews, or might have found me on Divorced Girl Smiling. After consulting with one of the spouses, I always offer to meet with the other spouse separately or together as a couple. Meeting both spouses is critical for me, and both spouses meeting with me is critical for them.
My initial consultation is very detailed. My goal is to help educate the spouses about mediation and their own priorities given their unique circumstances. At the same time, I’m assessing them to determine if they sound like a good candidate for mediation, while they assess me to be their mediator.
- Mediation: I provide an overview of all 4 paths a couple can take to divorce (do it yourself, mediate, collaborative process or litigate) and I explain each path along with the pro’s and con’s of each. I explain thoroughly why mediation is often referred to as the healthiest and best path. I also provide an overview of my mediation process.
- Their Priorities: If the spouses are comfortable I ask a lot of questions about their marriage, children, marital home, careers, salaries, assets, debts, property and retirement accounts. This allows me to help them understand at a very high level how divorce might affect them. I have found that couples really appreciate this component of my consultation.
- Fit: In order to be a good candidate for mediation a couple needs to be able to communicate, listen to each other, compromise and be transparent. Not all couples can do this. I need to make sure mediation can be successful, so I will ask questions and listen to help me assess this. At the same time, the couple needs to assess me to ensure that they both feel comfortable that I am unbiased and have a character, approach and experience that they both are comfortable with and feel can help them have a good outcome.
If my consultation results in meeting with both spouses together, I will also “pressure-test” their desire to divorce. This isn’t meant to change their minds, but is meant to assess whether they both are 100% certain that a) they want to divorce, and b) they have done everything they can to repair or enrich the marriage. This is important for a lot of reasons, namely:
- If both spouses are not aligned with a desire to divorce, often times emotions can derail a mediation process.
- If either spouse is not certain they want to divorce, I often suggest they give it thought before proceeding because once a couple decides to divorce and inform others, it is very challenging to stop the process.
- Lastly, and most importantly, while I’m a divorce mediator I’m not a fan of divorce. If I can refer a couple to a discernment counselor I will gladly do so, so they can work with a trained professional to help them both decide if they want to work on their marriage or continue with the divorce process.
My consultations could be an hour or longer for each spouse and I am happy to educate and help them understand all of their options and priorities. I do not charge for my consultations. I’ve been divorced, I know how complicated the process is to someone who has never experienced it before, so I invest a lot of time making sure the couple is educated and is able to make the best decision for themselves and their family. If they decide to mediate and choose me as their mediator, I will provide them with three forms, as follows:
- Agreement To Mediate: This is a brief document that helps all parties understand their roles and responsibilities during mediation.
- Fee Agreement: This is a brief document that summarizes my fees and helps a couple understand the maximum cost for my services (which is dramatically less than a single lawyer’s retainer).
- Client Input Form: This provides me with the core elements of the couples’ lives that I need to know so I can navigate their mediation process. Much of this information is also needed in the outputs that I provide to the couple.
First Mediation Session:
My mediation process starts with the couples’ children and helping them to make all of their parenting decisions. For me, I can look a couple in the eyes and say confidently that I know they both want what is best for their children. I also start the couples off with easier decisions that I know will not create conflict. I like to help them gain comfort with the process and confidence that they can do this. These are also questions that are relatively easy to make so we generally make a lot of progress in the first session, while still also covering off on some significant decisions.
Many couples come into mediation assuming incorrectly that they only need to create a parenting schedule and divide the holidays. While those areas are very important, there are numerous other decisions they need to make together about their children, and a good mediator will be very thorough and help them understand the other 70 or so decisions that need to be made for their children. If they are not thorough a judge may not approve their divorce, and worse, they are likely to be in conflict after their divorce.
There are two primary areas of a divorce process that do not impact the children directly, but do require some time, that of deciding what to do with the marital home, and preparing for the financial divisions. Because I strive to ensure that our process is efficient, I will also find the right time to introduce these two topics while we are addressing the parenting decisions. Typically I’ll address the marital home in the first session, and the preparation for the financial divisions when we are a session or two from completing the parenting decisions. Introducing these topics early in the process allows us to keep moving and also gives the couple opportunities to start to visualize how their agreement will impact them going forward.
- Marital Home: We need to decide a) if either spouse will retain the marital home, and if so, how they will share the home equity and how it will be funded and b) whether the spouse staying the home will be approved for a mortgage, if needed. I will often bring a Certified Divorce Lending Professional (“CDLP”) into a session to explain these decisions. If the couple instead wants to sell the home and divide the net proceeds, we start to engage with a realtor because a home sale takes considerable time and sometimes it is in the couples’ best interest to start that process early. In some cases the couple may decide to continue to own the home together after their divorce, through either a deferred equity buyout or a birdnesting arrangement, and both of these are creative solutions that do require some additional agreements.
- Preparation For Financial Divisions: Prior to starting discussions around spousal maintenance (alimony), child support and division of assets/debts/property, the couple needs to complete a financial affidavit. While this is not a complicated form, this form takes some time to complete. As a result, when we are close to completing the parenting decisions I will provide this to the couple and provide guidance on how to complete it. I am also available for questions as they prepare their financial affadavits.
Subsequent Parenting Sessions:
The evening after each session or the following day I provide the couple with a draft of their Memorandum Of Understanding (“MOU”) that is updated for all of the decisions they have made to date. This is done so they can read it while it is fresh in their minds, sleep on it, talk to others about it, and come back the next session with any edits or changes. I like to do this so the couple has time to think about their agreement and to always have opportunities to make changes as needed. In the end, I want them to have an agreement they are both very comfortable with.
As the start of our next session, I will also ask the following questions:
- How are you both doing?
- Have you had a chance to review the MOU draft and are there any changes we need to discuss or make?
- How are your children doing?
The last question about their children is a way for me to always introduce the importance of co-parenting and to keep both parents focused on always keeping their children front and center. In divorce it is all too common for spouses to lose sight of the impact of their divorce on their children. One of the greatest gifts I want to give to all of my clients is a child-focused approach and one that always helps them to truly put their children first.
After this introduction to our session, we’ll continue with additional decisions they need to make about their children. In my process, 70% of all questions I ask are about their children. This is a very important part of the mediation process, and is one of the best ways to explain how a mediated divorce differs from a litigated divorce. In court, judges will rarely ask how the children are doing. In mediation, most mediators care deeply about the emotional aspects of your divorce, and want to do all we can to help the family get through this in the healthiest way possible for them and for their children.
When we have finished the parenting decisions, I will try to finalize the parenting MOU and symbolically “put it on the shelf” so the couple doesn’t re-introduce decisions about the children in the subsequent financial division discussion where children sometimes become pawns. We certainly can and sometimes do make further edits to the parenting decisions, but I try to lock that down before moving into the financial discusions.
Financial Mediation Sessions:
First 45-Minute Session: Our first financial session is only 45 minutes and I use this time to review the couple’s financial affadavits. I would have reviewed and compiled them already and highlighted questions for the couple. It is important that we’re all comfortable with the financial information provided before we start our next working session. Often times one spouse will provide weekly instead of monthly pay or deductions, or forget to include certain key data. I also do a review of the data to assess whether anything is missing or mis-stated, and if detected, I will ask the couple to update the data and ultimately I will ensure that both spouses are comfortable with the financial information that is provided.
Subsequent Financial Sessions: Depending on the couple’s financial complexity, we can usually complete this section in less time than was required for the parenting decisions. These are tougher discussions, because the couple is generally in a tug-of-war dynamic, where each spouse wants the most favorable outcome for themselves. This is not always the case, however, and more often than not these decisions are fair and easily made by both spouses, especially if the process has been going well. We address spousal maintenance (alimony), child support, division of assets, debts and property, life insurance needs, tax considerations, and many other aspects of the couple’s financial situation.
Legal Representation:
Throughout the mediation process I inform the spouses that they may seek legal input either in or out of session, if desired. In some situations I highly recommend they do so, if the decisions are complex and significant. If they have a lawyer, they can either consult and come to a session educated, or they can bring their lawyer into a session. Either is fine and I help guide them if and when that might be valuable.
Additionally, upon completion of my work, the couple’s agreement as documented in their Memorandum Of Understanding has to be reviewed by a lawyer and then presented to a judge for approval. Both of these steps provide further assurance that the decisions they make are fair and reasonable.
Final Session:
At the completion of all discussions, I provide a final Memorandum Of Understanding to the couple, and we spend our last session reviewing it and aligning that they are both in agreement with all decisions reached.
I will also help them understand their next steps to process their divorce and also to ensure that they update their beneficiaries, accounts and insurance policies after their divorce.
We often thank each other for a good process, for good intent, for listening, sharing and making good decisions together. And I remind them that I am available for any questions that they have and that if they do need any additional mediation services I provide them at no charge for the next 90 days. This isn’t often needed, but I want them to be comfortable that they can reach out if needed to resolve anything amicably moving forward.
Conclusion:
What is divorce mediation? It’s the healthiest way to divorce. It is the least costly, least time-consuming, it allows the couple to make all of their decisions together, creates dynamics and coaching opportunities that preserve the ability for the couple to be good co-parents, and allows the spouses and the children to get through the divorce with the least amount of baggage. They can also have legal representation and will always have legal review and the review and approval buy a judge.
Many mediators that I know have an inherent desire for a healthy outcome and most strive to provide more than a Memorandum Of Understanding to the couple; they want the couple and family to be healthy as they move forward. This is one of the greatest benefits you receive when mediating, when your professionals care about you and your family.
The process explained above is my process. Other mediators may have similar or slightly different processes. If you are looking to learn more about mediation, you can call me at (224) 544-9990 or you can learn more about me and my process at michaelsmediation.com.
Michael Cohen, who also earned his CPA, is an accomplished business leader with extensive experience in people management and cross-functional projects that required him to often mediate and find the best path forward for people and teams, throughout his career. These skills are critical in a mediation setting. Coupled with Michael’s own experience in a litigated divorce, he is driven to help divorcing couples navigate their divorce in the healthiest way possible. Michael is the founder of Michael’s Mediation, which serves divorcing couples across the U.S. He is a graduate of the University of Illinois with a divorce mediation certification from Northwestern University. Michael is a loving father of three and lives in the Northern Suburbs of Chicago. Learn more here.
