Kane Law & Divorce Mediation Services - Kirkland/Bellevue/Issaquah/Redmond/Seattle

Labor Day is the traditional end of summer vacation and return to work.  Not surprisingly, As a divorce mediator and collaborative lawyer, I see an upsurge of calls from couples who have deferred the hard questions of how to best conclude their marriages and parent their children in separate households.  I hear in their voices a sense of purpose and urgency.  It’s time to get back to work.

I’m guessing that the surge in the stock market and up tick in real estate prices have played a role in moving couples from planning toward action.  Some experts say that this painful recession is technically over even though unemployment has yet to move in a positive direction.  Clients tell me that they are no longer avoiding their quarterly retirement reports as their investments have chalked up the best quarterly gain in years. Nor do my mediation clients any longer take the position that 2009 house values are an aberration that should be ignored in valuing community property.

From my perspective, this renewed courage to face reality is healthy. And the willingness of couples to explore mediated divorce settlements or the collaborative divorce process is encouraging.  The good news is that mediation continues to offer an economically and emotionally satisfying alternative to traditional court-centered divorce.  And the collaborative process really does provide that necessary “safe container” for many couples needing the support of a professional team to successfully navigate the shoals of divorce.

For couples starting mediated divorce settlement negotiations or the collaborative divorce process in the last few months of 2009, it appears more likely than not that their divorce finalization will coincide with the economy’s emergence from recession into a new growth cycle.  That’s a powerful transition to new life on both counts.

Early Stage Divorce Mediation requires information gathering by couples between sessions with their mediator.  Without reliable data identifying and valuing the property to be divided and the budgets of wife and husband going forward, it’s impossible to make good decisions about property division and the need, if any, for spousal maintenance.

At the end of the first mediation session, it is my practice to distribute financial and budget forms for completion outside the mediation room.  The financial forms ask for the details of bank accounts and balances, securities & investments, real estate, life insurance, privately held businesses, retirement accounts, cars & boats, and other personal property.  I also ask couples to bring in 2-3 years of Income Tax returns as well as a recent pay stub listing gross and net income on whatever basis employers compensate husband and/or wife.

The budget forms are designed to jump start the couple in estimating their monthly living expenses under two roofs instead of one.  They break out individual expenses as well as expenses related to the children of the marriage.

Couples interested in pursuing early stage mediation with a mediator often ask me if they should be doing some of this preparation on their own before coming to see me.  That’s usually not necessary or desirable in my opinion.  I typically don’t need to see the results of this homework until the third session in mediations where there are children involved.  That’s because my typical agenda begins with a parenting plan outlining the residential schedule of the children as well as how decisions about the children will be made.

Doing homework outside the mediation process is also risky in cases in which the couple does not communicate well or one party holds all the cards.  For example, if a husband has traditionally handled the finances and the wife is unsophisticated about the money side of the marriage, homework done by the husband may be devalued in the wife’s eyes. 

It’s important that the mediator have the opportunity to assess how decisions in the marriage are made before the homework is assigned.  That way, the mediator can parcel out the homework so that the results will be accepted by both parties.  For example, an impartial third party accountant can be brought in to value a business owned by the couple and operated by the husband or wife. 

In the case of the wife without financial experience, she can be charged with obtaining an appraisal or market analysis of the family home.  This serves the need of the mediator that the wife be engaged and empowered in the mediation process as well as the wife’s need to become more knowledgeable about the property to be divided in the divorce.

The very nasty and public Denise Richards-Charlie Sheen divorce brings home how vindictive and destructive divorces can be in America.  I don’t see people like that in my divorce mediation practice—husbands and wives who serve each other with divorce papers on Christmas Eve. 

Granted, my clients may not like each other much and may even exhibit high conflict behavior from time to time.  They seem to know intuitively, however, that going to court with warring lawyers, aggressive cross examination, and expert witnesses isn’t for them. So they turn to an experienced mediator (often before lawyers are involved) to help the real experts (i.e. the divorcing couple) come to agreement on a parenting plan, division of assets, and spousal maintenance.

How do divorcing couples know a mediator’s experience? Certifying associations such as the Association for Conflict Resolution (formerly the Academy of Family Law Mediators) can steer spouses in the right direction.  For example, I am a member of the ACR’s Advanced Family Law Mediation Panel, requiring hundreds of hours of family law mediation experience, specialized training, and peer review of mediation documents.

Do your own due diligence by asking a prospective mediator if he/she has experience mediating issues important to you and your spouse.  Stock options, closely held businesses, separate property vs. community property—and experienced family law mediator will have seen these issues in various contexts. 

And, finally, don’t underestimate website content. More and more of my mediation and collaborative law clients tell me that they feel they know me from my website blogs before ever meeting me.  For a lifelong learner with a yen for writing about life-giving pursuits, this is a powerful incentive to keep up my blogging.

When I set the table for a mediation session, I’m sometimes reminded of all the hoopla surrounding the beginning of the Vietnam Peace Talks in Paris in the early 1970s. For those not around at the time, there were months of wrangling between the U.S. and North Vietnam on the size and shape of the table—not to mention the seating arrangements for the negotiators. I’ve found through experience that the physical environment is as important to the success of divorce mediation as it is to questions of war and peace.

Setting the mediation table means making sure that there are two chairs facing me across the conference room table. I want the divorcing couple to be sitting side by side working through their differences—not facing each other across the table. Facing each other promotes positional negotiations and confrontation, neither of which is conducive to success. Also, it is important that the mediator be able to give each spouse equal face time, reinforcing the truth that as the mediator, I am totally impartial and listening intently to both spouses on the issues important to each spouse. That becomes impossible if the couple is facing each other instead of me.

Sometimes one or both spouses will move away from each other consciously or unconsciously during the session. On one occasion, a spouse actually moved around the rectangular table, allowing him to stare at his spouse. Usually, a simple reminder will suffice to return the couple to their original positions. The more glaring example was a tip-off that this particular mediation was in trouble.

Two blank sheets of paper in front of each spouse complete the table setting. It’s a constant reminder of one of my rules, DON’T INTERRUPT!!!. As I state at the opening session, the piece of paper is for note taking in case your spouse says something that doesn’t ring true or complete in your view. I will always give both spouses equal time to correct the record so a written reminder of the “point” allows for this to happen without the need to interrupt.

These are a few examples of the importance I place on the physical environment for mediation sessions. I am always alert for whatever the divorcing couple needs to promote a learning conversation resulting in a durable agreement.