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.

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.

What does the untimely death of journalist, Tim Russert, have to do with couples choosing mediation or collaborative law to resolve their divorces? Plenty, it turns out. In today’s New York Times OP-ED, William Kristol writes that ‘Big Tim’ “died too young, But he lived more than a full life—a life overflowing with achievements, and friendships, and love, and joy.”

As I read this powerful tribute to Russert three days after his fatal heart attack, I thought, “That’s exactly what all of us want in life.” More to the point, that’s what my mediation and collaborative law divorce clients mean when they say they need to move on. Typically, this is in response to my request at the first session that they name their high end goals from the mediation or collaborative law process.

For a couple choosing to create their own parenting plan and property settlement together with the help of a mediator or collaborative team, relationships are already important. It’s just that this particular relationship has become “stuck” in a way that no longer works for one or both of these spouses. For whatever reason, the sense of achievement, the friendships, the love and the joy of life have fled.

How do I know this? From the code words my clients use. High end goals are all about relationship and moving on. For example, a husband’s objective often includes helping a spouse transition to a new career or become financially secure. For parents, helping their children become confident, successful, and loving adults is often a shared vision.

At some point in the naming, however, the focus returns to the speaker and his/her need to move on with life—to reclaim what is missing in the relationship. And the end game which all of us aspire to but few reach is to attain a life overflowing with achievement, friendship, love, and joy—the life that Tim Russert had in spades.

For me as the family law mediator or collaborative lawyer, it’s both humbling and gratifying to help couples divorce with respect and move on with their lives. As painful as divorce is to a husband and wife, the vision of a new life a little like Tim Russert’s, becomes a powerful if silent motivation to negotiate differences and reach the finish line.

In my last blog, I discussed the difference between evaluative and facilitative mediators. How evaluative mediators are called in as the trial date approaches to settle the divorce by evaluating the legal strengths and weaknesses of each spouse’s “position.”

Facilitative mediators, on the other hand, leave the content of the mediation up to the parties and instead focus on the process of guiding the clients through all the issues important to obtaining a divorce in the State of Washington. Divorcing couples retain facilitative mediators in the early stages of a divorce, often before the Petition for Dissolution is filed. The focus of the in early stage divorce negotiations is interest-based, not rights-based. The decision-makers are the spouses. their agreements facilitated by a skilled mediator who provides a safe process and container in which the couple can make good and lasting decisions.

Facilitative divorce mediators are a diverse lot in background and experience. Although many mediators are lawyers by profession, other backgrounds are also represented in this field. For example, there are mental health professionals who may be best able to deal with significant communication problems between husband and wife or “high conflict” personalities. I also know of skilled mediators with a background in conflict management and organizational development consulting.

Acknowledging possible bias, I still believe that a legal background is invaluable for issue spotting and problem solving in early stage divorce mediation. Lawyers are trained to keep the negotiations on track, analyze facts, draw reasoned conclusions, and draft concise, comprehensive, unambiguous memoranda. If other disciplines are needed to manage emotions and good communications, these professionals can be included as collateral experts. While mediators who happen do be lawyers, don’t give legal advice, lawyers (particularly former litigators) seem to be thrive in this very different role. It is very satisfying to help divorcing couples achieve win-win outcomes without doing battle in court.

Experience also matters. Couples married for a few years without children or significant assets present less complicated issues and the need for a less experienced mediator. For mid to long-term marriages, parenting issues, significant property and/or spousal maintenance issues, however, a mediator’s experience in mediating parenting plans and property settlements is important to a comprehensive and efficient process. Stock options, pension valuations, closely-held family businesses, tracing separate property, family relocations—these are but a few of the issues that can and often do come up in mediations I facilitate.

These are complex issues calling for mediator with the right kind of experience. How can divorcing couples maximize their chances of finding a mediator who will tee up and facilitate discussion of these issues in a way that maximizes the opportunity for success? A good source of information is professional standing. The Association for Conflict Resolution ((formerly the Academy of Family Law Mediators) recognizes family law mediation experience by designating certain members as Advanced Family Law Practitioners for Conflict Resolution.

It’s not easy qualifying for this status. I know because I was recently approved after submitting an application the size of a telephone book. The prerequisites include a minimum of 60 hours of formal training, at least 250 hours of face-to-face mediations, and peer review of mediation documents.

Although a mediator’s background and experience do not guarantee success in the absence of spouses’ good will, focus on key interests, and spirit of compromise, together they form a winning combination for peaceful resolution of divorce issues.

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For most divorcing couples, their introduction to a mediator comes toward the end of the lawsuit when a judge or court rule orders mediation in an attempt to settle the divorce and clear the trial docket. Typically the couple’s lawyers pick the mediator, sometimes a retired judge or court commissioner. The mediator engages in “shuttle diplomacy” moving between two lawyers and their clients negotiating in separate rooms. The mediator typically practices what we call “evaluative mediation,” which means he/she feels free to evaluate and communicate the merits and weaknesses of “legal positions” taken by “each side.”

By giving his/her opinion as to what a judge might do, the mediator gets involved in the content or “what” of the negotiations. The imminent trial date before an unpredictable judge provides a powerful incentive to settle the case that very day. That’s what usually happens. Very few divorce cases go to trial.

The downside to late stage evaluative mediation is that it does not repair the damage to the couple’s relationship aggravated by the psychic and financial costs of litigation. These are resolutions based on one spouse’s ability to defeat the other spouse through reference to the law. These outcomes usually feel “win-lose” to people experiencing this kind of mediation. The pressure of settling on the eve of trial only adds to the feeling of loss and dissatisfaction.

That’s why I practice and support facilitative mediation after the decision to separate or divorce has been made, as an alternative to litigation with all the motions, hearings, depositions and briefs. Facilitative mediation focuses on the couple’s respective interests and needs. Although I sometimes am asked to mediate these “courthouse steps” divorce cases, most of my mediation practice is “early stage-facilitative.”

In facilitative mediation, the mediator owns the process but the parties own the content. The process can be defined as the ways the spouses and the mediator interact in order to realize each party’s high-end goals or outcomes. Process includes the sequence of the mediation as well as the interventions and techniques employed. A mediator who reframes an issue or speaks back what he/she has heard or sends the parties to “legal coaches” to talk about what a judge might do when faced with a particular set of facts is dealing with process.

In my practice, for example, I see my role as (1) guiding the clients through the divorce issues relevant to their particular family and financial circumstances, (2) identifying their basic interests and needs in order to facilitate their agreement on those issues, and (3) preparing a memorandum reflecting the spirit and substance of their agreement at the conclusion of mediation.

There are other basic differences in early stage facilitative mediation as I experience it. Although lawyers are often in the background, advising each spouse on legal questions, facilitative mediations are typically conducted without lawyers present. Spouses are in the same room, sitting side by side as they discuss and decide the details of their parenting plan and property settlement.

Facilitative mediators don’t evaluate their clients’ respective positions. Far from it, they ask their clients to focus on their key interests and refrain from taking positions. The goal is a fair and durable agreement—one that each person can look back on 2-3 years down the road and feel good about. Not in the sense that it was a “home run”; rather, that there was a fundamental fairness about the process and result that allows these former spouses to get on with their lives.

At the outset, I congratulate couples for involving a mediator in discussing a very sensitive subject at a very sensitive time. Discussing possible failure of a marriage during an engagement defines a difficult conversation, even with the help of a skilled mediator.

From the standpoint of a family law mediator’s goal of a durable agreement that will stand the test of time, the issues are challenging. The draft agreement may go well beyond property brought into the marriage, stipulating that most, if not all of the earnings during marriage, will also be deemed separate property not subject to division between the spouses should their marriage fail. Further, the power balance so important in effective mediation is difficult to measure with so much emotion involved. The couple is very much in love, trusting each other to be fair even though the proposed agreement may be very one-sided.

I feel that for these agreements to fulfill their promise, they must be fair to all concerned. Attempts to restrict the number of months or years of spousal maintenance depending on the number of years the marriage lasts don’t work very well if the disadvantaged spouse is destitute after a long marriage.

 All this prompted me to reflect on the role and gift of compassion in divorce mediation and the family law collaborative law process.  Divorce is typically a very stressful time for couples and their families.  A good mediator and collaborative lawyer will do everything in his or her power to manage and, hopefully, reduce the stress.  The mental health professional on a collaborative team is critical to this result. The goal is to hold the couple in a safe container where they can make wise choices and durable agreements.  

 In the mediation context, I start my private sessions with each spouse at the initial meeting by asking about special needs.  I always ask how the kids are doing and what each spouse’s high end goals are for the mediation.  I suggest that the parents bring in pictures of their children while we develop a parenting plan.  It helps me to see the beneficiaries of a life-giving process during difficult times.  I always keep a box of Kleenex handy, reminding my clients that tears are OK and nothing to be embarrassed about.

 My hope is that these  and other strategies will help enlarge my “capacity for feeling what it is like to live inside someone else’s skin…,”  part of Frederick Beuchner’s definition of compassion?  But I also believe that the motive is action—my goal of facilitating agreements that allow clients to move on with their lives while preserving important relationships.  As Archbishop Tutu points out, “Compassion is not just being sentimental and feeling with someone, but seeking to change the situation.  If you are going to be compassionate, be prepared for action!”

It’s one thing to inform clients that my objective as a mediator is to facilitate a peaceful resolution of their marriage that allows clients to move on with their lives and preserve important relationships at the same time. It’s quite another thing to manage a process where spouses are talking past one another—unintentionally causing hurt feelings and pushback. So often, it’s not the content that’s important but the judgmental language and tone inflection that invites retaliation and threatens the mediation process.

In such situations, I often recommend a wonderful little paperback, Difficult Conversations by Stone, Patton & Heen. This book is equally useful in raising difficult issues with bosses, children, and clients but I see the results in divorce mediations and collaborative law. Among the pearls of wisdom is the authors’ advice to start with identity when discussing difficult topics. Three core identity issues are: Am I competent?; Am I a good person? and Am I worthy of love?

During a mediation session, I listen closely for attacks on these core identities and reframe what I am hearing to take the sting out of the comment so that we can move on. For example, a husband’s thoughtless remark that his wife doesn’t understand the marriage finances might invite the retort that the husband has never shared financial matters. The storm clouds gather quickly.

A good mediator or collaborative lawyer will be alert to such tense exchanges and quick to reframe by saying something like, “What I’m hearing is that George has handled the finances while Joan has taken responsibility for nurturing the children on a day-to-day basis.” By honoring both spouses’ identities as competent and valuable people with important skills, the mediator helps to bring the temperature down so the couple can focus on what brings them to mediation in the first place.

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.

Wait a minute, you might say.  In every marriage, one spouse is more competent than the other in different facets of a marriage.  For example, the husband may see to investments, financing the house and other major purchases, and sometimes the checkbook balancing.  The wife may be the “hands on” parent, knowledgeable on the comings and goings of the kids as well as the homework assignments.

That’s all true and, admittedly, we’re not looking for perfection when we talk about power in the mediation and collaborative law context.  What is important is confidence in the negotiations.  I’m constantly amazed by clients whose grasp of things financial improve dramatically during the mediation process.  By the same token, the absentee parent who has this or her children full time every other weekend typically becomes more “hands on” as the mediation and collaborative law process unfolds.

In mediation cases where the lack of self confidence is palpable and continuing, I urge the spouses to retain a certified divorce financial analyst or a child specialist, depending on the issues involved.  In rare situations where I conclude that professional assistance is necessary for meaningful negotiations and a durable final agreement, I will insist on this. These jointly retained professionals are barred by agreement from testifying for either party if the mediation or collaborative process fails and their work product is treated as confidential.

In other cases, I will urge a husband or wife to retain a divorce coach to help him or her deal with the emotional fallout of divorce.  My objective is always to balance the  power between the negotiating parties so they can make wise decisions for themselves and move toward their preferred futures.