Pre-divorce mediation is a way to go through divorce proceedings amicably, while minimizing cost. The benefits of pre-divorce mediation cannot be overstated; indeed, mediation offers an avenue that avoids expensive litigation and the acrimony it engenders. I have handled several mediations successfully, and would like to explain how it works.
Both the husband and wife meet with an attorney who specializes in family law and is also certified as a mediator, as are all of the attorneys at Gornbein Smith Peskin-Shepherd. An agreement is reached at the first meeting that the attorney will be acting as a mediator and will not be representing either the husband or wife in the divorce. The role of the attorney will be to meet with the parties to cover all issues in the divorce in an effort to help them resolve everything in an amicable fashion.
Normally, the way I do this, is to have a meeting, have an agreement drawn up with the understanding that I, as the attorney, will be acting solely as a mediator, cannot represent either one of them, and will work with them to cover all issues in an amicable fashion through a series of meetings. I then will outline in detail the key issues in any divorce. These consist of child related issues including custody and parenting time. They include child support, medical insurance, medical expenses, spousal support/alimony, and division of property. The division of property will include the marital home, any savings, investments, 401Ks, pensions, automobiles, personal property, and any other assets. It will also include, especially in these tough economic times, how debts are to be handled, including credit cards, home equity lines, and the mortgage if the house has a negative equity. Each party is given homework to come up with lists of all assets and liabilities, an affidavit is prepared so that there is protection as far as having everything under oath regarding assets and liabilities. Through a series of meetings every one of the issues in a divorce will be discussed in an effort to resolve them.
However, should resolution become impossible through mediation, then the mediator steps aside and the divorce parties can resort to litigation if they so choose.
On the other hand, if the mediation is successful and every issue is resolved, then a settlement agreement is drafted. The settlement agreement is then sent to each party's attorney (of choice) for review. In some cases, however, everything is pre-packaged and the pleadings are drafted by the mediator for each party to appear In Pro Per (without attorneys). The parties then go through the legal system without the need for attorneys and at no additional expense, other than the normal divorce filing fees. Meanwhile, the mediating lawyer monitors them through the system, again, with the understanding that all documents can at any point be reviewed by independent attorneys of the husband and the wife's own choosing.
As the foregoing paragraphs reveal, pre-divorce mediation minimizes the cost of divorce, especially attorney fees and the time spent in the legal system. The emotional cost of divorce is also minimized. Of course, mediation does not take away the pain of divorce. However, the cordiality of mediation proceedings, as opposed to the caustic nature of divorce litigation, limits confrontation and facilitates healing.
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