When married couples in the Seattle-Bellevue area contact me to inquire about what early stage divorce mediation looks like, they are usually motivated by (1) saving money, (2) fear of lawyers/legal fees, and (3) the desire to maintain a good relationship with their spouse.  They are also, by and large, “can do” people who are willing to do “homework” between sessions to keep down costs.

This concern about costs runs the gamut from the Microsoft executive and small business owners to young couples who have much financial stress in their lives.  My mission and message is to be as efficient as possible in helping couples address all the issues that need to be determined to parent well in separate households, split community property fairly, and meet their agreed post-divorce budgets. 

Efficiency means using every minute of our two hour sessions to move through the prearranged agenda with a laser-like focus.  Efficiency also means assigning homework to couples to complete between mediation sessions.  A third aspect of an efficient mediation is referring mediation clients to other professionals for al a carte services between mediations.  Finally, a good divorce mediator is attentive to managing emotionally charged exchanges between spouses during sessions.  I am quick to remind my clients that it takes at least 30 minutes to calm down after an emotional exchange—and that ½ hour, which the clients are paying for, is largely wasted.

 This mediator uses Progress Notes sent out after each mediation session to propose an agenda for the next meeting, e.g., completion of a parenting plan, discussion of child support, valuation of community assets and liabilities.  Usually, the homework (e.g., create individual post-divorce budgets, will track the agenda items.  Thus, the clients have time to prepare for each session and we don’t lose time in unfocused conversation. That being said, the Progress Notes always emphasize that the spouses’ agenda items trump the mediator’s.  Often, there is something important that has “just come up.” We never ignore or delay urgent decision-making.

Referring mediation clients to outside professionals recognizes that divorce mediators are not “universal experts.” Often, spouses want to know what a judge might do about spousal maintenance or property division issues.  I keep a list of family law lawyers who are willing to “coach” clients behind the scenes so they can better negotiate on their own behalf.  Or the need might be for a financial analyst to educate a spouse about the long-term financial impact of various property splits or spousal maintenance options. Whatever the a la carte need, an experienced mediator will help find the professional to help the clients make fully informed decisions.

Managing client emotions during divorce mediation takes good observational skills and conflict management experience. Typically clients calm down more quickly with the reminder that the financial costs increase when the discussions get “hot and heavy.”  Reminding clients that “saving money” is an important reason they are at the mediation table in the first place is a powerful antidote to wasted time.

In my last post, I discussed the important direct benefits of Divorce Progress Notes.  Celebrating the interim agreements reached, reminding couples of their homework to prepare for the next session and creating the agenda—these deliverables all serve to help couples move through parenting and property issues to decision-making as efficiently as possible.

There are also indirect benefits from the use of Progress Notes, most importantly:

• Illuminating communication “bad habits” that are getting in the way of efficient brainstorming;
• Brainstorming where there is ambiguity or other options in the tentative agreements or views of the parties;
• Reinforcing my admonition about one-on-one discussions “between meetings” about finances and other touchy topics; and
• Emphasizing  by repetition the relationship between each spouse’s high end goals and the decisions reached;

Every couple I see has unique communication habits honed over the years.  Here I focus on bad habits that get in the way of good agreements in the best interests of the wife and husband.  There may be the gentle put-down that doesn’t feel gentle at all to the recipient.  Or couples that intuitively “think” they know each other’s thoughts and motives—and are not bashful about exposing their perception of unworthy motives on the part of their partner.: “All John (or Mary) is interested in is making sure I don’t have enough money to afford a decent house.”

I remind my clients in Progress Notes that impugning the motives of their spouse must be avoided if they are to achieve their goals.  Focus on “I” messages instead of “You” messages in communicating about important things (and what is more important that how you share your kids and property).  “I” messages (1) keep the focus on me; (2) are non-judgmental; (3) Describe my needs and feelings; (4)Do not lower the other’s self esteem. “You” messages, on the other hand, (1) put the focus on the other person; (2) Seldom mention my needs; (3)Are blameful; and (4)Tend to erode self-esteem.

Without the clutter of “You” messages, couples can brainstorm solutions to their issues. Continuing the brainstorming is part of this mediator’s Progress Notes.  I use lots of parentheses in raising questions as I summarize decisions and issues discussed at each session. For example, (Have you considered who stands to gain the most from taking the children as personal deductions?) (What about the possibility of avoiding the expense of shifting 401K retirement assets from a past employer to your spouse by first rolling over the assets into a rollover IRA in the former employee’s name?). Sometimes good ideas take a while to germinate—they can’t always be summoned intuitively during a 2 hour mediation session or 4-way collaborative meeting.

Progress Notes also allow the mediator to warn clients about things to avoid between sessions. Unless I am dealing with a couple with excellent interpersonal communication skills and knowledge about finances, I typically warn clients to be careful about one-on-one discussions about money and financial support.  I do this in bold letters in the Progress Notes: ‘Please do not discuss the substance of your divorce negotiations/differences outside the mediation room, except with a professional advisor.  That goes for family, friends, and particularly, communications between the two of you in or out of the house.”

Most importantly, Progress Notes allow the mediator or collaborative lawyer to repeat the high end goals expressed by both wife and husband at the first session—with the suggestion that each client measure the progress made and the decisions reached on the standard of his or her goals in entering mediation or the collaborative divorce process. One of my favorite is “I want to be able to stand next to my former spouse and witness our daughter’s wedding together.”

These high end goals are like the lighthouse beacon that serves to bring the ship through the shoals and storms to a safe harbor after a successful voyage. They guide us toward a respectful and fair divorce.  What a rewarding feeling of accomplishment on the part of both clients as well as the guides helping them along the way!

The last six months have been so busy with new divorce mediations and collaborative divorce cases that I’ve totally blown my goal of monthly posts on this website.  Website visitors last heard from me as the autumn winds were blowing.  Now the decks are getting cleared just as spring is in full bloom and summer is around the corner.  It’s time to share some learnings from this busy time in my professional life as a peacemaker.

If this is your first time on my website, you should know that during successive two hour meetings with me as their mediator, divorcing couples address the myriad issues to be resolved in their parenting plans, child support, and financial settlements.  Between sessions, they are responsible for homework such as completing a parenting plan questionnaire, valuing a house, or gathering tax returns. With a few new mediations beginning every month, I found it easier to keep good notes and resort to emails to remind clients of their homework between sessions.  Collaborative cases utilize an organized team approach so this is not an issue.

With six new divorce mediations and one collaborative case beginning in a single week last fall, I quickly realized that I needed to gear up to keep myself and my clients organized and informed of (1) new information shared at each mediation session, (2) new homework to be accomplished between sessions, and (3) the agenda for our next meeting.

Progress Notes, which are commonly used in the collaborative divorce process, proved to be the answer to my search.  Simply put, Progress Notes are ideally emailed within a few days of the mediation session.  The document is typically 3-4 pages in length and divided into sections entitled:

• What We Accomplished,
• Homework,
• Proposed Agenda for the Next Session,
• High End Goals, and
• Date/Time for the next Mediation.

Progress Notes serve a number of very useful purposes.  Starting with the last session’s accomplishments reminds the parties that they are making progress toward an out of court divorce settlement.  Their interim agreements are there in black and white. Moreover, the mediator has time to reflect on the substance of the just-concluded session and comment/raise questions on the potential ramifications of interim decisions, e.g., possible tax impacts).  Each spouse can check off homework for which he or she is responsible.  As the next session approaches, both spouses are forewarned as to the proposed agenda.  The mediator can prepare better. There are no surprises.

There are also indirect benefits from the use of Progress Notes—reminding my clients, for example,  of their high end goals from mediation, and reinforcing my admonition about talking “between sessions” about finances and other touchy topics.  More on the indirect benefits in my next post.  Please stay tuned.

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.

The Boston Law Cooperative, a multidisciplinary group of lawyers and other professionals, recently analyzed 199 of its divorce cases.  The study found that divorce mediation cost an average of $6,600 followed by an average of $19,723 for divorces using a collaborative team of lawyers, financial analysts, mental health and child specialists.  More expensive were lawyer-negotiated divorces ($26,830) while traditional divorce litigation ($77,746) is comparatively off the charts.

From my experience mediating over 100 divorces over the last few years and representing clients in collaborative divorces, the cost of mediation sounds about right while the expense of the collaborative team approach seems low.  Like most things in this world, the menu choices for couples who truly want to “get it done” and move on with their lives without acrimony depend largely on how much support the couple needs.

As a divorce mediator, one of my most important roles is to manage the mediation efficiently.  Mostly I see couples who prefer to work out their financial settlement and parenting plan by themselves with the help of a mediator but without lawyers present.  One of my responsibilities is to make sure that both the wife and husband can find their respective voices to articulate their needs and goals.

Another money saver is the assignment of homework between mediation sessions.  At the close of every mediation session in my Kirkland office (usually 2 hours in length), we schedule a next session and agree to homework to be done by husband and wife between sessions.  For example, there might be a business/house appraisal to arrange or a child specialist to see for help on what the children need in a two-house parenting arrangement.

My mediation clients and I lead busy lives and we accommodate everyone’s scheduling needs with this caveat. No one is allowed to delay the mediation process without a good reason.  In most cases, spouses conclude an overall agreement on the parenting plan, property settlement, and spousal maintenance in 4-8 months.  This typically includes a detailed Separation Agreement reciting all of the agreements of the wife and husband.  

For clients unable or unwilling to brainstorm solutions with their spouse, even with my help, mediating with lawyers present or opting for the collaborative model is best.  That being said, having lawyers present and involved with gathering information to bring to the mediation table obviously raises the costs of mediation. 

With the collaborative model, clients generally come to the collaborative lawyers first who then assemble a team of experts to help the couple with the financial and parenting content of their divorce.  The collaborative team’s objective is to hold the divorcing couple and their family in a safe container so the couple can make good decisions about their property settlement and parenting agreement.  As long as the clients are prepared for the additional costs of all this support, this model works.  In the end, the couple feels empowered to co-create their divorce settlement and parenting plan with the support of the collaborative lawyers and other professionals.

Spending an hour with an experienced family mediator/collaborative counselor-at-law can help illuminate how much support a wife or husband needs and the costs involved in choosing one or another of these options.  Dedicated as most of us are to collaboration between spouses considering divorce, I suspect that most collaborative professionals would welcome email or phone inquiries from spouses and couples uncertain which option is the best for them.

        I  have been remiss in my posts during this long and wearisome winter.  But I have my excuses.  In mid-January, my co-tenants and I were rudely informed that our landlord had lost its master lease and we needed to vacate our Bellevue digs within a week.  So, that’s how I ended up at Carillon Point in Kirkland.  I’m on the 4^th floor of Bldg. 5000 just across from the parking garage which validates parking for my clients. My new office number is 425-605-6336. This office and restaurant complex lies on the   shores of Lake Washington a couple of miles north of I-520. We have a good view of Northeast Seattle on the clear days. It’s a peaceful setting for a peacemaker.

        Unfortunately, moving offices is anything but peaceful. There are cards, stationary, envelopes, brochures, etc. to be designed, printed, and paid for—all the indices of permanence in this transit world of ours.  Meanwhile, the recession and winter have continued relentlessly—that is until spring made an appearance this past week.

        Spring is a time for renewal and new life.  Just as the cherry blossoms have emerged, the stock market is showing signs of life.  Clients tell me that they haven’t had the nerve to open their investment reports but I’m predicting that will end with the good news from Wall Street.  There are signs that this painful recession is on the wane and splitting up assets might not be such a painful reality check as we move into April.

        Divorces are painful enough as it is.  Emotions run high.  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 couples needing the support of a professional team to successfully navigate the shoals of divorce.

        The challenge is that too few divorcing couples are aware of these life-giving options to traditional divorce courts.  This spring, two of my mediator colleagues and I have dedicated ourselves to developing a third option—the voluntary use of a mediator at the earliest stages of a traditional divorce to help  cooperative lawyers and their cooperative clients gather relevant information and negotiate successful outcomes outside the court process. MORE OF THIS IN MY NEXT POST.

Admittedly, if couples go the traditional route of each hiring a lawyer to represent each spouse’s interests in court, the costs can be high. It’s estimated that the average litigated divorce costs each party $18,000 while highly contentious divorces and custody battles can cost $40,000 or more per side.

Adding insult to injury, there’s only so much a judge is authorized to do in dividing property and awarding spousal maintenance.  For example, a judge will not order, over a party’s objection, that husband and wife continue to own the family home after the divorce is final as partners. A judge’s duty is to divide the community property.  If there is not enough other property to compensate the other party for his or her fair share of the house equity, the house must be sold to provide the cash for both parties. And divorcing couples are loathe to sell the family home in a down real estate market.

Fortunately, there is a pathway to avoiding economic ruin without “toughing out” a marriage that is over for all intents and purposes.  In Early-Stage mediation, a seasoned mediator can take couples through all the issues that need to be decided in order to come to agreement on a parenting plan, division of property, and spousal maintenance.  The mediator writes up the agreement at the end of the process.

Husband and wife own the content of the mediation while the mediator is in charge of the process.  Typically, 3-5 two-hour sessions will be needed to cover all the bases and reach agreement on all issues, including a parenting plan, child support, college education, retirement accounts, real estate, stock transfers, taxes, air miles and the family pet.

Creative alternatives to the sale of the family home and liquidation of stocks in a down market are part and parcel to divorce mediations in times of recession.  To avoid this scenario, spouses may opt for joint ownership of real estate for a period of time after the divorce with stipulations as to who pays the mortgage in the meantime, who lives in the house, and when the house will be sold or refinanced.  Similarly, liquidation of securities can be avoided by splitting stocks in-kind.

So, for those couples who want to stay out of court and be in charge of the content of their separation agreement, there is a viable option to toughing it out together under the same roof until economic conditions improve.  To see whether you and your spouse might be good candidates for divorce mediation, please refer to my blog on High End Goals in Compassionate Divorces–Lessons from Big Tim’s Death (June 16, 2008) for self-screening.  Although I discuss this topic in the context of collaborative law as distinguished from mediation, the tests are the same.

[1] The Week, Vol. 9, Issue 396 (January 23, 2009) at p. 6.

 My anecdotal evidence is a sudden fall-off in the number of inquiries from spouses interested in mediation and non-litigation divorce options about that time as well as similar observations reported by my colleagues “over coffee” and at various conferences.  I can also reflect on my personal reluctance to open up my retirement statements when the only unknown is how far my mutual funds have fallen.

 For many people, their house is their principal asset. House equity provides the grease to overcome the truism that it’s more expensive to live under two roofs than one.  If the house can’t be sold at a price that provides the wherewithal to buy replacement housing, that’s an impediment to starting a divorce.  Add in the reported tightening up of lending requirements, the decision to delay may appear to be the best choice for many couples.

 I believe these fears are largely unfounded in light of the Seattle housing experience and reduction of mortgage rates expected from the Federal Reserve’s decision to lower a prime lending rate almost to 0%.  Unlike many areas of the U.S., Seattle and Bellevue area housing prices have fallen only modestly, reflecting solid employment and continued demand for housing. Among major metro areas, Seattle’s real estate was rated the best in the nation as a prospective investment according to a late October 2008 report by Price WaterhouseCoopers and the Urban Land Institute.  

 And there are alternatives to selling the family home that can be explored with the help of a skilled divorce mediator or collaborative lawyer.  One scenario is for the spouses to continue to own the home after the divorce as partners until sale is triggered by an event (for example, the youngest child reaches college age) or a date (for example, 5 years). The spouse staying in the house pays all or part of the mortgage and both share fairly in the proceeds of sale. 

 As for losses in retirement accounts, typically securities and mutual funds do not have to be sold when spouses are divorced.  Instead, they can be split “in kind” so both spouses can benefit from a rebound in stock and mutual fund prices.  So while the net assets of the couple may be less than they were a year ago, that is no reason to put off implementing a decision to divorce.  Indeed, a rebound in the financial markets may occur during the time that divorce mediation typically takes to achieve final agreements on a parenting plan, property settlement, and spousal support.  And the date the couple’s property is to be valued is a mutual decision by both spouses in mediation and the collaborative divorce process. 

 So the recession is no reason to stay under one roof in unhappy circumstances or put two lives “on hold” for an undetermined time.  Far better to start the process, identify the issues to be resolved, and move toward solutions than to bury “heads in the sand” based on unfounded assumptions.

January and September, on the other hand, seem to bring with them a resolve that now is the time to face up to the implications of living apart and raising children in two households.  They are “get down to business” times of the year when many people decide to divorce.

What about going through a divorce in bad and uncertain economic times such as we’ve encountered during the past month or so?  Do couples defer divorces during economic downturns so they don’t have to face decreased valuations of houses and 401K retirement plans? Most people I know with money in the stock market don’t even open their statements when they know the news will be bad.  For those couples contemplating divorce, the prospect of splitting up a smaller pie of assets may lead to avoidance,  “gutting it out” even though the marriage is over for all intents and purposes.

That may be a mistake if there is any truth to Billy Joel’s “Scenes from an Italian Restaurant.” “They started to fight when the money got tight, and they just didn’t count the tears.”[1]

For those who have tried marriage counseling unsuccessfully and want to move on with their lives while preserving dignity and important relationships, a better solution is to consider early stage divorce mediation.

Most of my divorce mediations are conducted in a conference room with only the divorcing couples present.  Couples do a lot of the information gathering on assets, debts, and post-divorce budgets. If they need outside help such as financial experts to value businesses or lawyers to coach on legal issues, couples access this help between sessions and bring the information back to our sessions to help them better negotiate fair outcomes.

The result is an efficient and economic process that is all the more valuable in difficult economic times.  The mediator manages the mediation,  helping the couple identify the issues and relevant information and then move through negotiations on how to best parent their children, split the assets of the marriage, and provide for needed financial support for a spouse.  The divorcing couple, who know their situation the best, makes these important decisions collaboratively in the informal environment of a conference room.  The mediator writes up their agreements that form the basis for a Separation Agreement.

At the end of the day, couples don’t part mortal enemies in mediations I’ve been privileged to facilitate.  They are practiced in how to make and implement important decisions about their kids collaboratively.  And, an added bonus when money is tight, my mediation clients avoid expensive litigation, leaving more in the pot to split up.

[1] Schultz, “Ugly economic times can lead to ugly divorces,” Forbes (July 15, 2008)

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.