As they begin their first mediation session, both Stacey and Derek feel some anxiety. Their mediator, Ms. Smith, soon puts them at ease. “Don’t worry,” she assures them as they sit down, “I’m going to make sure that both of you thoroughly understand the process, and then we can talk about what kind of schedule might work best, and what you will each need to do before the next session.”
Ms. Smith begins by addressing some mediation “ground rules.” These include guidelines for:
- Respectful communication, such as taking turns speaking and listening, and not interrupting each other;
- Refraining from filing any papers in court without first informing the other party and the mediator; and
- Maintaining appropriate communication. Ms. Smith reminds Derek and Stacey that she is there to be neutral and will not take sides. If either of them wishes to speak to her privately, they can request a “caucus.” She will always follow a caucus with one person by giving the other person equal time to speak privately. She also reassures them of the confidentiality of their process.
Ms. Smith then asks each of them to summarize the basic facts of their situation and indicate what they see as the critical areas of agreement and disagreement. She also asks them to explain their reasons for choosing mediation. She has each of them summarize the other’s statements, and then sums up what she has heard as the most important points. After this they come up with a tentative schedule together.
“I think we can tentatively plan on four additional meetings,” suggests Ms. Smith. “One to develop a parenting plan and review your financial information; one to analyze the financial data, take a look at the New Jersey Child Support Guidelines; one to discuss division of assets and debts; and then one to discuss alimony. After each session I’ll plan to send out a memo summarizing any agreements you reach, and if all goes well, by the fifth session I should be able to put together a Memorandum of Understanding (MOU) encompassing everything. We can use that last session to review the MOU and tie up any loose ends.”
“The MOU,” Ms. Smith explains, “is not the same thing as a final Marital Settlement Agreement (MSA). I recommend that one of you have an attorney review the MOU and incorporate it into an MSA. The other can then bring the MSA to an independent attorney for review before filing it in court with the divorce papers. Based on the number of financial issues you have raised, I also recommend that you both retain consulting attorneys as soon as possible.”
“Isn’t that an unnecessary expense?” Derek protests. “We hired you partly because you are an attorney. I never imagined we would need to pay three legal professionals by choosing mediation instead of just one!”
“Remember, you wouldn’t be hiring them for full representation, which greatly reduces the cost,” Ms. Smith explains, “and the attorneys won’t need to attend the sessions unless a serious problem develops. As an experienced family law attorney, I can certainly give you a lot of legal information, but because of my neutral role as a mediator, I can’t advise either of you regarding your best course of action on any issue.”
After giving it some additional thought, Derek and Stacey both feel comfortable with the plan. All three of them sign the mediation agreement. Ms. Smith then gives them a checklist of financial and personal paperwork to begin collecting. For the next session, she asks them to bring in complete information about the children’s schedules, including details of their school situations and important extracurricular activities. She also urges them to begin collecting information and documentation of all of their assets, debts and income, and gives each of them a blank New Jersey Family Case Information Statement to use as a guideline in this process.
Ms. Smith then suggests that they consider obtaining a business valuation of Derek’s CPA practice, and possibly an appraisal of their home as well. Derek again protests, stating that the business has very little value and he could easily assess it on his own, and that they could also easily collect their own comps on the home. Stacey points out that Derek has no experience valuing businesses and that she wouldn’t trust him to come up with an accurate amount. She agrees, however, that they might be able to assess the home value on their own.
Ms. Smith reassures them that she understands their financial concerns. “I’m not recommending that you each go out and get a full professional opinion on the value of the business as you might do in a court battle. If you can agree to abide by the judgment of one joint financial expert, you might be able to get an abbreviated opinion for a relatively low fee.”
Stacey and Derek agree to try this route and Ms. Smith offers them some names of accountants and other financial experts who have worked successfully with some of her previous clients. She asks them to try to have an opinion by the third session, which they will schedule for about a month down the road. They then schedule the second session two weeks after the first, and Derek and Stacey go off confident in their chosen course of action.
How will Derek and Stacey continue to fare as their sessions unfold? Stay tuned to find out!