FAQ: Divorce Mediation

"Settling your divorce case will be the biggest negotiation of your life. The stakes are huge: Your children, your money, your sanity."

 

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A: Divorce mediation is an effective, peaceful and inexpensive method of assisted settlement negotiations.

In a mediation session, a neutral professional -- the divorce mediator -- facilitates communication between you and your spouse and ensures that all information is provided for both of you to make well informed and fair settlement decisions.

Without deciding the issues or imposing solutions, the mediator enables the parties to better understand each other’s positions and to reach a mutually agreeable resolution to their disputes.

Once agreement is reached, the mediator prepares a formal written and legally enforceable Property Settlement Agreement, acceptable for filing with the court.

A: Mediation is faster, less expensive and tends to create much less emotional turbulence for you and your children than the adversarial litigation process. Mediations involve far fewer people and systems than litigation. Mediation is a fairly streamlined process. In the majority of cases, there is only one mediator and no divorce attorney fees. That results in tremendous cost savings.

Divorce mediation is designed to tamp down the emotional turbulence associated with divorce. Mediation is a rational process with simple, but effective, methods that help separating couples learn to communicate – for their benefit and that of their children. More peace at such a chaotic time is a welcome relief. Learn more about Mediation versus Litigation.

A: Failure to communicate well – or at all – should not hold you back if you are considering divorce mediation. Many couples come to mediation because of their inability to talk to one another -- but they always end up working together on problems once they are in the mediation room. Mediators are highly skilled at helping couples move through their ingrained and negative communication patterns so that real progress can be made in their divorce settlement.

A: The divorce mediation process provides an opportunity for both parties to be heard, to identify the issues and to generate options for resolution. If all matters are settled, the mediator will prepare a Property Settlement Agreement.

Five Key Parts - At Graine Mediation, the process can be broken down into five key parts:

  1. Intake Call/Intake Meeting
  2. Pinpointing Issues
  3. Sharing Information (clients share facts, circumstances goals; mediator shares legal, tax, financial information and parenting information)
  4. Facilitated Negotiation
  5. Drafting and Signing of Mediated Property Settlement Agreement (PSA)

Time Requirements:

  • Most cases settle in 2-3 sessions.
  • The requisite number of sessions are usually completed within 2-6 weeks.
  • The time required to settle a case is dependent primarily on the parties’ schedules, the complexity of the issues, and the parties’ motivation to settle.
  • Mediation sessions are blocked for 3 hours. Some sessions go a little longer, some a little shorter.

A: The divorce mediator’s role is to assist couples and parents, through an efficient and practical settlement process, to make the best, mutually agreed upon, long-term decisions possible for both of the parties and their children. The divorce mediator’s methods include helping the parties with the following:

  • Establish a peaceful environmental which facilitates essential communication and preserves parental relationships. Mediators help parties to neutralize language and frame their concerns in ways which facilitate truly hearing each other’s needs and concerns.
  • Identify & focus on key issues for resolution. The divorce mediator will help you think through, sort out and prioritize disputes and matters to help make the settlement process as fair and efficient as possible.
  • Gather and share necessary information, while limiting unhelpful speculation. The divorce mediator ensures that all important information is put on the table – your family’s financial facts, relevant laws, tax and financial implications of various settlement options and current research related t the impact of separation and divorce on children. The mediator also gently discourages conjecture that inflames emotions and hinders cooperative settlement planning.
  • Create settlement options for mutual benefit based on the law, the mediator’s experience with other couple’s in similar circumstances, and the parties’ unique circumstances as presented in mediation.
  • Focus on children. If you have children, the mediator will help you stay on track and focused on their well-being.
  • Property Settlement Agreement. Once mutual agreement is reached on all issues, the mediator will draft a fully enforceable Property Settlement Agreement, which is acceptable for filing with the court.

A: Mediation is an excellent settlement option for most divorcing couples. Mediation is not appropriate, however, when the following situations apply:

  • Physical Abuse – present or past history; threats of bodily harm; fear of violence; strong intimidation
  • Order of Protection in place.
  • Knowledge that your spouse is actively concealing assets, but no knowledge as to where those assets may be.
  • Inability to understand the issues or participate in settlement negotiations.

A: At the first session, you are not required to bring any specific paperwork. However, many clients come prepared with key financial documents, which are usually helpful and move the case forward a little quicker. Once your first session is scheduled, you will receive an email from Graine Mediation with a suggested list of documents to gather. Those suggested documents are also set forth below in the question: "What documents will I need to gather and/or prepare for mediation?"

At your first session, the actual issues for settlement will be determined. The mediator will then be in a better position to craft "homework" assignments for your unique case, e.g., documents to be gathered, budgets to be prepared, refinance pre-approvals, rental real estate shopping, job searches, asset and liability distribution proposals, parenting arrangement suggestions, etc.

A: After our first session, I will have a much better understanding of which supporting financial documents we will need in order for both of you to be able to make informed settlement decisions. Many clients come to the first mediation session ready to participate; but,they do not actually begin gathering documents until after they see how things go at that first session. Others come prepared with documents that they think will be important for settlement. Both methods are fine. It is up to you.

Below is a list of information and documents that we often refer to when settling a divorce case:

  1. Gross Monthly Incomes (paystubs, LES (Military), tax returns, W-2s, documentation that shows gross income if a party owns a small business)
  2. Net Monthly Incomes and the exact deductions that are taken Out (paystubs, LES, tax returns, documentation that shows net income if a party owns a small business)
  3. All other sources of Income (brokerage & bank statements showing dividends & interest, leases/bank statements showing rental income received, tax returns,1099s, etc.)
  4. A list of Assets & Property (bank accounts, brokerage accounts, stocks, bonds, valuable antiques and collectibles, etc) including how they are titled and how they were acquired (especially whether acquired prior to the marriage, whether acquired with assets acquired before the marriage and/or whether acquired by gift or inheritance)
  5. A list of Liabilities & Debts (credit cards, student loans, personal loans, tax liabilities, etc) including the name of the party on the debt and specifics as to why the debt was acquired (especially if either party is claiming that a particular debt should belong to only one of them)
  6. Marital Residence - value, mortgage balance, monthly payments, lines of credit, source of down payment, purchase price, deed, necessary repairs and upgrades (for sale or otherwise)
  7. Same for other real estate owned
  8. Monthly Expenses - A good idea of what your household and monthly expenses are and projections for what these expenses will be when you are living in separate households (if not doing so already)
  9. Health Insurance – Current costs for health insurance for parties; projected costs for health insurance when parties are each on individual policies (if not done already)
  10. Children’s Health Insurance – Cost to insure children
  11. Automobiles, Motorcycles, Boats - Name on title, name on note, value, monthly payments, insurance costs, mileage
  12. College Costs for Children - What is the plan for college costs? Are there college savings accounts? Identify, value, ownership
  13. Pension – Documents that identify asset (e.g., FERS, CSRS, Military Retirement, corporate pension), documents that show present value (if you have it), estimated monthly payments once in pay status (if you have it), date pension contributions began (before marriage?), future date of eligibility or date payments began, status of survivor benefits
  14. Retirement Assets (not pension) – Document that identify asset (e.g., TSP, 403(b), 401(a), 401(k), IRA, Roth IRA, SEP SIMPLE, etc.), most recent statement showing value, date contributions began (before marriage?), beneficiary status
  15. Other Deferred Compensation Plans including, but not limited to, Stock Option Plans/ESOPs, Restricted Stock Plans, Employee Stock Purchase Plans, etc. – Documents that identify type of asset, all documentation necessary to fully demonstrate the purpose/reason for the deferred compensation (if it exists), the date the deferred compensation was allocated to the employee spouse, the vesting schedule, documentation to show any and all stock options, etc. that have been exercised/cashed in and whereabouts of that asset at present
  16. Small or Closely Held Business Interests – P&Ls, balance sheets, K-1s, tax returns with all schedules (usually, last 3-5 years), valuations, buy-sell agreements
  17. Loan & Credit Applications – Business and personal loan and credit applications

A: Whether or not you hire experts and professionals will depend on the facts and issues in your case. As a general rule, it is always best to have as much clear advice and information as possible upon which to base your settlement decisions. Speculation, when it comes to financial decision-making, should be kept to a minimum. Your decision to hire experts will depend on factors such as:

  • your level of expertise and understanding with regard to the financial matters in your case;
  • the complexity of the information that you need to understand;
  • whether a family business is involved;
  • whether there are unique assets in your case that need to be professionally valued/appraised;
  • whether separate (non marital) assets have been commingled with marital assets; and
  • the cost of the expert advice and information.

A: Most divorce mediation cases settle in 2-3 sessions. Each session lasts about 3 hours. The requisite number of sessions are usually completed within 2-6 weeks. When you mediate your divorce settlement, there is no delay as a result of court schedules, phone and email "tag" between lawyers and the vast amounts of paperwork that are characteristic of divorce litigation. Direct party-to-party negotiation, with the assistance of a mediator, is much more time efficient than the adversarial alternative.

A: Usually, if one spouse is interested in mediating their divorce settlement, the other party is also willing to give mediation a try. Often times, a visit to this website helps answer the other spouse’s initial questions and a follow-up call soon follows.

It often helps if a “resistant spouse” learns that 90-95% of all divorce cases settle before they go to trial. That being true, a divorcing couple might as well begin the process with a settlement (versus litigation) mentality. Also, when deciding whether to mediate or litigate, it often helps to know that mediations are confidential. That means that offers and counteroffers made can never be brought up in court as “evidence” for or against either one of you.

After you have your initial call with the mediator, just let your spouse know that he or she may call us when convenient: 571-220-1998.

Total Average Cost: $5,000 from Initial Call to Signed PSA

Our Hourly Mediation Fees are $325 per hour. Fees are for mediation session time, one-on-one mediator-client conversations (called “caucuses”), lengthy phone calls and emails, and document review. Most cases are resolved in two or three 3-hour sessions. For sessions beginning after 5pm and on weekends, there is a 20% surcharge.

The Property Settlement Agreement (PSA) is charged at a flat rate: $1,800-$2,600 + some edits.

Call a Mediator!

A: Mediation is an excellent forum for working through financially complex divorce settlements. The non-adversarial nature of mediation will allow you and your spouse to focus on the details of the financial aspects of your divorce and avoid the procedural distractions and legal maneuvering inherent in divorce litigation.

A: Attorney representation is encouraged, but is not required. Some clients have a divorce attorney counsel them every step of the way. Others receive no legal counsel at all. Though welcome to attend mediation sessions, attorney presence is rare at Graine Mediation. If one spouse has his or her attorney present at the mediation, the other spouse must also hire and have his or her lawyer present at the sessions, too.

In Virginia, mediators are permitted to provide divorce clients with legal information, but not advice. Information helps clients weigh the pros and cons of various settlement options. Advice tells clients what they should do.

Legal information includes:

  • the actual law in Virginia which is applied by the courts;
  • the areas of Virginia law which are "gray" and up for interpretation by the courts;
  • national, state and local legal trends;
  • pertinent sections of the Tax Code (Federal Law); and
  • a comparison of the facts, circumstances and settlement options in your case as compared to other divorcing couples in similar circumstances.

A: With the exception of the Property Settlement Agreement (which the mediator writes), you will need a divorce lawyer to prepare and file your divorce documents. In Virginia, once a professional has acted as your mediator, he or she is not permitted to prepare or file your divorce documents, whether or not they are a licensed attorney in the Commonwealth of Virginia.

Only one party to a settled divorce case needs to hire a lawyer for this purpose. Graine Mediation has attorney referrals for this purpose that range in price from $500 - $850 flat fee. Some clients choose to prepare and file their own divorce paperwork, but this is not recommended.

A: Your divorce mediator will help you weigh your options in terms of what is best for your children, both now and, as much as possible, for the long-term. The ultimate decisions with regard to the custodial care and holiday schedules for your children will, however, be made by you and your spouse.

The mediator will be there every step of the way to help guide you through the often difficult conversations and compromises that are necessary when planning how to raise your children in two separate homes.

All families are unique, but there are certain key points to consider when getting divorced with children:

  1. Children of divorce need both parents in their lives, as much as possible to maintain and enhance the essential parent-child bond. Deep parental bonding has been shown to effect children's ability to form high level relationships and human connections;
  2. Children thrive when they feel that they are being raised by two loving parents and that both parents have their (the children's) best interest in mind;
  3. Children of divorce absorb negativity between the parents and often feel that such discourse is their fault. Parents need to work hard to dispel angry feelings, appreciate each other’s parenting contributions, and move on with their lives as much as possible (despite the fact that they are forever joined by their children); and
  4. Children of divorce tend to do better when their parents live fairly close to one another and the children have liberal access to both parents.

A: A written and signed Property Settlement Agreement, drafted by a mediator, is a legally enforceable contract, just like any other properly drafted and signed contract. Under Virginia law, there is no difference between the enforceability of a Mediated Property Settlement Agreement and one drafted by a divorce lawyer.

Once you are actually divorced, the component parts of your Property Settlement Agreement will be incorporated into your Final Order of Divorce (how Virginia Courts refer to your "Divorce Decree") and you will have both an enforceable contract (the Mediated Property Settlement Agreement) and a Court Order (the Final Order of Divorce) that contain much of the same requirements.