Mediation

Affording Mediation

Although mediation is less costly than traditional litigated divorce, it can still be an expensive proposition, especially when you are in a position in which your finances are going to be divided. There are ways to make mediation an affordable option. Consider these solutions:

  • You and your spouse can share the cost
  • The mediator may be able to offer you a payment plan.
  • The mediator may be able to space out sessions so that you and your spouse can save enough between sessions to pay for them.
  • Your attorneys may be able to offer you a payment plan. Since part of mediation is consulting with your attorneys and paying them to finalize the divorce, being able to space out their costs can help.
  • You can do the mediation now and then do the actual divorce filing later, once you’ve saved enough to pay for that.

There may be a volunteer mediation program available in your community. Ask your attorney, or check with your state mediation association, court, or the local Better Business Bureau’s Community Dispute Resolution Program. Work out with your spouse as much of your settlement as you can before going to mediation and then only mediate those areas you disagree on.

Expense Sharing

When you go to your first mediation session, your mediator will ask who is paying. If one of you is more financially stable than the other, that spouse may be the logical person to provide payment. But this is not necessarily always the best solution. Some couples feel more comfortable if they each pay half so there is no feeling of obligation to the other spouse. It is also important to note that one spouse can pay both attorneys’ fees as well if one of you cannot afford an attorney (ask your attorney what your state rules are about this). If one of you can’t afford to pay mediation fees, you could work out an arrangement where you trade an item of personal property for having the fees paid (for example, “I can’t pay the mediator, but you can have the piano if you pay for it”). Another option is to split the cost of mediation.  You can each pay the mediator half; pay the mediator out of a joint account; or prorate the percent you will each pay based on your income levels.

Affording Mediation

Your Rights and Responsibilities

Your mediator may spell out your rights and responsibilities as part of your mediation contract. You have the right to:

  • Consult an attorney
  • Receive complete financial disclosure from your spouse
  • Be treated civilly by your spouse while in mediation
  • End the mediation any time you choose
  • Refuse to agree to anything you are uncomfortable with
  • Bring up any topic or issue that is of concern to you
  • Equally present solutions and options and have them considered
  • Receive receipts for payments to the mediator and a complete accounting for his or her time and expenses
  • Have your attorney review any document before you sign it
  • Ask that your children be part of the mediation process
  • Receive a copy of the mediation agreement and any settlement or agreement documents you sign during mediation

As a participant in mediation, you have certain responsibilities as well. These include:

  • Paying the mediator (however you work this out between yourselves)
  • Completing the homework assignments given to you
  • Producing all documents requested by the mediator
  • Providing complete financial disclosure
  • Treating your spouse and the mediator in a respectful manner
  • Considering all solutions offered by your spouse or the mediator
  • Retaining an attorney of your own
  • Making a good faith effort to reach compromises and resolutions
  • Attending all scheduled mediation sessions

Agreement to Mediate

Your mediator’s agreement should cover all the same basic points, including:

  • Mediator fee (retainer, hourly rate, refund process, cancellation policy)
  • Mediator’s promise of confidentiality
  • Your and your spouse’s responsibility to provide complete financial disclosure
  • An agreement not to dissipate or waste marital assets during mediation (in other words, not to take or spend joint assets during mediation)
  • A statement that you and your spouse are voluntarily choosing to mediate
  • A clear description of the issues you are mediating (at the very least, it needs to say you are mediating a divorce)
  • A promise of the mediator’s impartiality
  • An explanation of who will be responsible for paying outside experts (such as accountants or financial planners) who are brought into mediation (normally all fees will be your and your spouse’s responsibility, and an expert will only be brought in if you consent)
  • Your right and responsibility to obtain independent legal counsel

Be sure to read the agreement to mediate completely and make sure you understand everything in it before you sign it. Make sure you receive a copy of the agreement after it has been signed.

Be wary of contracts that:

  • Do not include the elements just listed above
  • Allow the mediator to disclose information discussed or provided during mediation without your permission or a court order
  • Include large, nonrefundable fees (all fees you pay must be accounted for in terms of the mediator’s time or activities relating to your case; if a mediator told you that you had to pay $5,000 up front and you couldn’t get it back if you didn’t use up all the time you would be paying for, that would be a red flag)
  • Allow your mediator to file your divorce papers with the court (when you file the divorce, one person is suing the other; your mediator represents both of you, and filing the divorce papers would mean he or she is representing only the filing party—this is a conflict of interest)
  • Require you to sign away your rights to go to court to get a divorce or your right to an attorney