Lisa and Justin knew when they began mediation that they had a lot of complicated issues to work through, but they were confident that with the right help, they would be able to reach the solution that would work best for them and their family.
When they began mediation, they each hired an attorney and spent some time learning about their state’s laws and how a judge would likely decide their case. Justin was a mechanic and owned his own garage and had IRAs and 401(k)s in his name.
Lisa was a teacher and had a state retirement plan. The couple also owned a vacation condo in addition to their main residence. They realized they needed someone to help them understand the values of these various items and to help them consider what kind of division might work best for them. Their mediator suggested they work with a real estate appraiser as well as a financial planner, who also was an accountant.
Through the advice of these other professionals, Lisa and Justin were able to create a settlement that maximized their assets and was fair to both of them. In addition to your mediator, there will be other professionals involved in the mediation process.
Mediation involves attorneys (unless you choose not to hire them against the advice of your mediator) and often includes consultations with other professionals, such as financial advisors and planners, appraisers, law guardians, and therapists.
If you do not already have one, your mediator will recommend that both of you retain separate attorneys. These attorneys perform several important functions for you.
- Provide legal opinions. Your attorney will give you an opinion about your case. Not only will your attorney help explain the law to you, but he or she will help you understand what kind of result you would be likely to get if you went to court. You’re not planning on going to court at this point, but you still need to know what you can expect because it provides you with information about your alternatives. If you can’t negotiate an agreement in mediation, you need to know what outcome you would be likely to get in court. The attorney can also help you understand how some issues are commonly decided. For example, your attorney can explain how child support works and how retirement accounts are often divided.
- Act as a sounding board. Your attorney is available to you throughout the mediation process and is a good place to go when you are not making progress in mediation. All discussions with your attorney are confidential, and his or her experience handling divorces makes your attorney a knowledgeable source. The terms you or your spouse ask for in mediation might not be realistic, might be difficult to implement, or might be something a court would not agree to, so go over these decisions with your attorney. Your attorney can talk with you about the decisions you are considering and offer some suggestions, advice, and alternatives.
- Offer mediation support. Sometimes it can be helpful to bring your attorney with you to mediation, particularly if you feel you are having difficulty speaking up for yourself or getting your point across.
- Review your agreement. Your attorney will review the agreement you reach and make sure that it is comprehensive, is complete, and protects your rights. He or she will also be sure it meets your state’s requirements and will be accepted by the court. The court must approve your agreement, and your attorney will alert you to any potential problems.
- Finalize your divorce. Your attorney and/or your spouse’s attorney will be involved in completing the necessary paperwork to finalize your divorce in court.
Finding an Attorney
If you do not have an attorney, locate one before you begin mediation. Choosing a mediation attorney is different from choosing an attorney for a contested divorce, and your priority is to find an attorney who is mediation friendly, believes in the viability and effectiveness of mediation, and is enthusiastic about it. Some attorneys do not believe in mediation, feeling instead that the courts are the best way to handle divorces. Some even believe that mediation takes business away from them, so it is important to work with an attorney who feels positively about mediation and is enthusiastic about helping clients through the process.
To find a mediation-friendly attorney, contact your state or local bar association. If you have already chosen a mediator, he or she can provide you with a list of attorneys who are mediation friendly. Once you’ve got some names, talk to the attorneys on the phone or in person. Ask about their feelings about mediation and if they believe it is a good alternative. Then schedule consultation appointments with the attorneys you are considering.
Questions to Ask Attorneys You Interview
- How long have you practiced law?
- How many divorces do you handle per year?
- How many mediation clients have you worked with?
- Do you practice mediation yourself?
- What are your fees?
- If we do not reach an agreement in mediation, will you handle my court case?
- If I need you to come to mediation with me, will you?
- Do you believe mediation is a good choice in my situation?
Using One Lawyer, or None
Some couples are uncomfortable at the thought of hiring two attorneys and a mediator and want to hire just one attorney. It is possible to hire just one attorney, but that attorney cannot give you personal legal advice. The most common scenario in which having one lawyer works is when the couple does not have consulting attorneys during the mediation process (that is, the couple works exclusively with a mediator) and then hires just one attorney to finalize the divorce. However, this situation precludes you from obtaining personal legal advice.
It is also possible to not use an attorney at all. Your mediator can explain your state’s divorce laws to you. If you are using an attorney-mediator, he or she will be able to provide the divorce agreement in a format that can be filed directly with the court by you or your spouse. If you contact your county clerk’s office or check your state’s website, you can find information about handling the divorce paperwork yourself. Many states are now making the process more accessible and user friendly.
Questions to Ask Your Attorney During Mediation
- How would a judge decide this?
- Have you ever had a case with a situation like this? How was it resolved?
- I’m thinking of asking for the house and having my spouse make half the payments on the mortgage. Does that sound reasonable to you?
- I’m having trouble explaining how I want the retirement accounts divided. Can you help me find a way to explain it better?
- Is this child support plan one the court will accept?
Although mediation helps you work out the legal issues in divorce, it is not designed to help you completely resolve emotional issues. Before coming to mediation, some couples try therapy to save their marriage. Therapy can also be an important tool during mediation.
Questions to Ask Therapists
- What kind of education and certification do you have?
- Are you experienced working with people going through a divorce?
- How often are you available for appointments?
- What are your fees?
- Do you participate in my insurance plan?
- What kind of therapy do you do?
- How will you be able to help me?
Although you are divorcing, couples therapy can be very helpful. The focus is not on fixing things but on finding ways to come to terms with the divorce and developing new ways to work with each other and parent together. Get a referral from your mediator or family physician. Couples therapy can also help you uncover and cope with many underlying issues and misperceptions, making it easier to come to a reasonable divorce agreement.
Many people going through divorce find individual therapy can be very helpful. Your therapist can help you cope with the divorce, regain confidence, improve self-esteem, and look to the future. You can work through anger, sadness, fear, and frustration with your therapist and come to mediation better able to focus on the issues. Therapy gives you a place to grieve, express anger and sadness, and learn tools to help you cope with all of these feelings. Get a referral from your mediator or primary care physician.
If your child is having a difficult time coping with the divorce, consider taking him or her to a therapist that specializes in working with children. The therapist may wish to see parents separately or together at various points in the treatment. Making sure your child is able to cope with the divorce is referral from your pediatrician or mediator.
Because divorce is primarily a financial rearrangement (except for parenting issues), your mediator may recommend that a financial advisor, financial planner, or a specialist such as a pension expert assist with your mediation. He or she can help you:
- Understand tax consequences
- Get the most tax breaks possible
- Understand capital gains
- Understand retirement accounts and social security and how they can be divided
- Find the best way to divide assets and retirement accounts in your situation
- Decide what makes sense to sell and what makes sense to keep
- Consider whether you should sell or keep your home
- Understand the value of and assist you in choosing an annuity plan for alimony (a financial account that is set up to automatically make alimony payments)
- Understand the value of the other spouse’s business
- Discuss ways to refinance or manage debt
- Create a financial plan for the future
- Plan for your children’s college expenses
- Consider the value of life insurance
Your mediator may recommend a financial advisor or may request that you locate one yourself. Look for planners who have the designation CFP (certified financial planner) or ChFP (chartered financial planner) and always ask if they have experience working with divorce clients. Be wary of planners who seem to be there to push or recommend only certain financial products.
If you have a home, business, vehicle, or collection that needs to be valued, you may need to hire an appraiser. An appraiser will examine the asset and provide a professional estimate of its value, including a reasonable sale price. This information can then help you when you are working on your property division. When hiring an appraiser, make sure he or she is experienced in appraising this asset. Provide the appraiser with as much information as you can about the asset.
For example, if your home is being appraised, explain that you put in a new furnace last year or that your kitchen cabinets are solid wood, not veneer. If a business is being valued, get details about what documents the appraiser is basing his or her valuation on. Your mediator may ask that the appraiser present his or her findings during a mediation session.
If you are unable to reach an agreement about a parenting plan, you may consider obtaining a custody evaluation performed by a child psychologist. The psychologist meets with you, your spouse, and your children and creates a report that recommends who the children should live with and how much time they should spend with each parent. Custody evaluations are most common in contested court divorces and can increase the rift between you.
The report will almost always point the finger at one parent and point out the negatives of both parents. Reading this kind of report can be very painful, and it can be very damaging to your parenting relationship if it is ever presented in court. Most mediators will recommend against the use of a custody evaluator.
Law Guardians or Guardians ad Litem
If your case started out in court and then went to mediation, you may have a law guardian (which in some states is called a guardian ad litem) assigned to the case. These attorneys are assigned to represent the children’s interests in custody disputes. If one has already been assigned to your case, this attorney will need to approve any agreement you make about parenting.
If you wish, you can invite him or her to come to a mediation session to discuss possible plans. Understand that the law guardian or guardian ad litem is not bound by your agreement with your mediator and can use anything discussed or presented in mediation (for or against you) should the case return to court.
Tips for Working with Other Professionals
- Be clear as to whether you, you and your spouse, or the mediator is hiring the professional and who will pay him or her.
- Write down contact information so that you know how to reach the professional.
- Make sure you understand the professional’s qualifications and experience.
- Have a firm understanding of what the professional is basing his or her recommendations on.
- Discuss the use of any outside professional with your attorney. Professionals other than therapists and attorneys are not covered by a confidentiality privilege.
- Consider expert advice you receive, and use it in conjunction with your personal feelings and preferences to make decisions that work best for you.