The divorce process today is very different from the divorce process of a decade ago. Couples are finding that alternatives exist to the standard litigation approach. In the greater Houston area, for example, family courts now require that all couples seeking divorce try mediation before going to court. And there is no rule that says each spouse must hire an attorney first before initiating that mediation process.
In fact, some couples are finding it advantageous to begin the divorce process by first hiring a specially trained mediator or a Certified Divorce Financial Analyst with mediation experience to do the heavy lifting of working out the divorce settlement details. Sometimes, they use a divorce attorney as a “consultant” along the way, or to draft and file legal documents when an agreement is reached and finalized. However, attorneys typically encourage couples to move into litigation mode.
Divorce mediation typically takes the form of two basic approaches — Caucus Mediation and Early Intervention Mediation.
Litigation mediation, the most common form of mediation, is structured where each spouse is in separate rooms with their respective divorce attorneys and financial experts. A mediator, frequently another family law attorney, goes between the two rooms shuttling proposals, explanations and impressions back-and-forth. Mediators cannot provide legal advice. Their primary job is to facilitate a settlement agreement between the spouses. This puts pressure on all parties to settle as quickly as possible. Caucus mediation sessions are generally set for one full day. About 90 percent of divorce cases reach settlement in mediation. Couples usually go home tired, but with the knowledge that negotiations are over and they won’t have to face court.
Early Intervention Mediation is different, and not broadly known by much of the general population. Early Intervention mediation is designed to honor a couple’s belief they can work out the division of property with the professional help of a mediator for the welfare of their children, and complete their divorce in a way that preserves good family relations in the future.
In this type of mediation, both clients are often in the same room, likely at a round table. The couples may also choose the caucus approach, and mediate from separate conference rooms if they wish. With the early intervention approach to mediation, clients and the mediator discuss and look at possibilities and potential results, and explore alternatives to dividing the marital estate.
The mediator in this approach can be a Certified Divorce Financial Analyst who usually co-mediates with an attorney. Here, the attorney/mediator cannot represent either party, but can clarify points of law. The parties involved in this approach enter into the mediation well prepared, having worked with the CDFA to understand all the financial issues at stake, ensuring that both parties are fully aware of every asset and liability. Attorneys can be consulted by phone, if not present in the room, for answers to any legal concerns. This type of mediation usually lasts only about four hours.
Once the couple agrees on all aspects of their settlement, they leave the session with a Mediated Settlement Agreement. This can be submitted to an attorney to provide information for the final decree that will be presented to the judge once both parties have read and signed it.
Generally, Early Intervention Mediation is much less expensive than taking the litigation route, since attorneys are only consulted and engaged on a limited basis as the couple chooses.
Early Intervention Mediation works best when both spouses are well informed about their property, debts and expenses, and have agreed to work toward a mutual agreement to divide the marital estate. If, for instance, there is a strong possibility that one party may be hiding assets, the couple should not use Early Intervention Mediation. may want to consider another approach to the divorce process.
For best results, those who chose this form of mediation also should engage mediators who are well-trained and experienced in this type of negotiation.
Patricia Barrett will be presenting at upcoming Guide to Good Divorce seminars on May 21, July 23, and Sept. 24, 2016, and at Leisure Learning Unlimited on Mar. 28, 2016. She is also a regular speaker for Manousso’s Mediation Training for advanced family mediation. For more information, visit Patricia’s website, www.lifetimeplanning.cc.
This article is designed to provide readers with a general overview of the issues discussed and is not a substitute for legal or financial representation.