Please contact us if you cannot find an answer to your question.
When a divorcing couple retains an attorney to be a neutral mediator, the mediator, in this neutral capacity, does not assume any responsibility for representing the interests of either party or advising them what is best for them personally; instead, she is retained as a neutral for the sole purpose of helping the parties mediate a resolution. This is a limited scope of representation. This means that the mediator cannot later represent either party in matters where the parties are adverse to each other, nor can she testify as to what took place during the mediation. For purposes of mediation, the divorcing couple is aligned and is a joint-client. If the mediation fails and the divorcing couple is forced to litigate their divorce issues, they become adverse and, again, neither may retain or involve the mediator in litigation where they are adverse to one another. In her capacity as the mediator she is neutral and does not represent the interests of either mediation client.
Mediation is a process where a neutral, third person helps people in conflict (1) identify specific issues of contention, (2) understand their core needs and values, (3) understand the other person's core needs and values, (4) brainstorm resolutions that meet as many core needs as possible, (5) develop clear and specific agreements, (6) consider foreseeable obstacles, and (7) reduce agreements to a written document.
Like traditional divorce mediation, the main goal is to mutually resolve property, support, and custody issues. Holistic mediation, however, focuses on the whole person and not just the legalities of divorce and custody. A holistic mediator uses the mediation process itself to help clients develop emotion management, communication skills, and problem-solving strategies. These skills, in turn, provide the foundation for a more focused, respectful, and productive relationship between the clients moving forward which can enhance personal well-being by reducing conflict. Holistic mediation further seeks to help clients order their legal lives as separate people. Thus, clients are also offered the opportunity to evaluate estate planning options such as wills and living trusts, healthcare decision-making, and powers of attorney.
The ultimate goal of holistic divorce and custody mediation experience is to create a sustainable and organized infrastructure for the future so that each individual emerges on solid ground, feeling balanced, and ready to start a fresh chapter in their lives with as little conflict and uncertainty as possible.
Simply put, the biggest difference between mediation and going to court is the decision-maker. In mediation, the people mediating decide the outcomes. In a court proceeding, the judge gets the final word. But it really is more than that. Court proceedings are adversarial. There is a Plaintiff and Defendant. Issues are "won" and "lost." There is no collaboration, no practice communicating, and there is little time to fully explore the merit of different resolutions. To the contrary, when decisions are imposed and there are winners and losers, bitterness and anger often develop setting the tone for future conflict and discord.
Judges have extremely full calendars. If you choose to mediate, your divorce, your children, your finances, your family situation have sole-billing. Your family is the only case on the docket, and the people who know the children best and who love them the most are the ones making the decisions that affect them and you. In essence you are in control.
Yes, with a few exceptions. For mediation to work best, each party needs to be honest and open. The goal is to find workable solutions that meet needs, not to win. In order for clients to feel comfortable being honest, they cannot feel that what is said in mediation will later be disclosed by the mediator. To this end, you will be required to sign a confidentiality agreement to protect the content of what is said during the mediation. Both clients must agree that the mediator cannot be called as a witness in any future litigation. Further, as they are retaining the mediator as a joint client, mediation disclosures are covered by the attorney-client privilege as far as the mediator is concerned.
If either party states an intent to harm themselves or endanger another person, the mediation will be terminated and the mediator will immediately notify the appropriate authorities.
No you do not. Mediation is a voluntary process. If at any time in the process you decide that it is not working for you, you can terminate your participation.
No. The mediator's job is to manage the discussion of issues and the negotiation process. The mediator also ensures that there is full disclosure of all relevant facts and makes sure that each party has an equal opportunity to participate. Within this process, the mediator will support communication and negotiation with an eye toward resetting the communication process and offering new ways to view issues to help parties reach resolutions. The mediator will help parties identify what matters to them (their interests) and help clients brainstorm different strategies to meet those needs. If the parties desire, the mediator can also propose solutions for consideration that reflect her knowledge of the parties' interests and information which has been shared during the mediation process.
Probably the only advantage (and it is temporary) to litigating issues before a judge, is that you don't have to actually talk to the other person. You have an attorney to do that. Initially, this feels great. After all, your relationship has ended, and there is a good bet that you do not like this other person much at the moment, or at best, they bring up a lot of negative feelings. Not talking, well that is certainly easier than yelling at one another. Expensive, probably, but how nice to not talk to the other person right now!
The problem is--especially if you have children--you are going to be in each other's lives forever. And for your children's sake, for your wallet's sake, and for your own sanity, you need to find a way, eventually, to interact and communicate productively with one another moving forward. Putting aside the cost of retaining an attorney and litigating every issue in the future, some things cannot wait on the slow wheels of justice when you need to work out solutions in real time.
Establishing new and improved communication strategies is a huge benefit of mediation. As part of the process, you will learn to focus less on your position, and more on your core needs and values. You will also learn the power that comes with truly understanding the other person's core needs and values and the strength it gives you in reaching resolutions that work for both of you. You will practice these skills in the mediation context with the support of the mediator. Mediation is a safe place to learn and work on these skills. Not only can mediation help you reset your communication, it can also help you reset your relationship. If used to its fullest potential, mediation can set the stage for focused and productive interactions for your new life.
Ultimately, the length of time needed to mediate is up to the participants. Timing depends on a number of factors. First, how many issues do you need to mediate? For each topic, we will do the following: (1) gather relevant information, (2) determine each person's underlying needs, (3) brainstorm creative solutions, and (4) evaluate which solutions meet the most needs. If agreement is reached on that issue, we will (5) reduce it to writing and move on to the next issue.
To help with the process, the mediator will ask you to do certain preparation outside of mediation. For each topic, you will complete an information form and, if necessary, gather relevant documents. For example, when putting together the financial information, you will be asked to gather current statements for checking, savings, investments, retirement, as well as paystubs, loan documents, monthly bills, etc. Similarly, when discussing parenting time, you will be asked to provide calendars for school and activities, work schedules for each parent, etc.
A second factor is the availability of both people to work through the process, gather information, and ability to complete outside assignments. Obviously the more efficient people are in gathering information and preparing for mediation, the faster the process moves. Couples who can work together and agree on information (e.g., the value of the house, the values of bank and investment accounts, etc.) keep the process moving. But at the end of the day, accurate financial information is key to mediating a resolution.
In holistic mediation, we invest up front in education. The idea is not only to resolve your divorce issues, but also to teach you conflict resolution skills so that you can better handle future issues that may arise without involving a third party.
During the first few weeks while you are gathering documents and information, you can work through some or all of the education offerings, if that works in your budget.
Once all education is completed and information gathered, we will meet jointly to identify areas of agreement and issues to mediate. We will then reserve a full day to mediate your issues. Any agreements that are reached will be reduced to writing signed by both parties. If all issues are settled, Ms. Marias can prepare a Marital Settlement Agreement, including, if appropriate a detailed parenting time-share plan.
Finally, Ms. Marias will meet will connect you with attorneys who can assist with finalizing your divorce and/or helping with new estate planning.
Estate planning is the area of the law that focuses on the what ifs of death or incapacity. If you are not able to make health care decisions for yourself, who would you want making them? If you are incapacitated, who should manage your finances? If you die, what provisions are made for the people who depend on you?
For many separating couples, these questions are linked to their ex-partner. The goal of holistic mediation is to respectfully untangle all aspects of life and launch two separate individuals, prepared with a solid infrastructure for their future lives. Taking care of estate planning is no less important for the individual than it was for the couple. It is an essential piece of this puzzle.
Ms. Marias will recommend that you consult with anyone you feel would provide helpful consultation. If you feel unsure about your personal legal rights under this agreement, you should meet with an attorney who only has only your interests in mind. That person might point out items you had not previously considered. You are also welcome to separately retain an attorney who can support you during the mediation process if that is what you would like.
Remember, Ms. Marias does not represent the interests of either party. While she will endeavor to ensure that agreements are fair and reasonable based on the core needs expressed by the parties, and while she will point out advantages and pitfalls from a general perspective, Ms. Marias will not provide legal counsel to you or any party involved in the mediation. She is neutral.
Similarly, if you have questions about how your agreement might impact your finances, you should consult with your accountant or wealth manager. If your agreement involves other people helping you, you should consult with them to ensure that they can provide the assistance you may need.
Please contact us if you cannot find an answer to your question.
Absolutely not. In amicable divorces, parties still exchange information and negotiate for their desired result. They are represented by their chosen legal professional who represents their best interest while focusing on low-conflict and cost-effective solutions to issues that arise.
Yes. ADN members are vetted and trained to ensure low-conflict and a commitment to working outside of the court process. Because Amicable Divorce is a process, it is essential that both attorneys understand the process and will work within it. ADN members are vetted for amicable ideals and have a level of experience and professionalism required by the network.
Should an emergency arise which requires you to access the court system, nothing prevents you from ending your amicable divorce and initiating a court proceeding. At Kainen Law Group, you would be assigned to one of our litigation attorneys who specializes in contested litigation.
The Amicable Divorce process contemplates two options if the parties and their attorneys cannot resolve certain issues, both of which DO NOT involve the court. First, you will seek to mediate the unresolved issues. Mediation is voluntary, and the mediator will help develop creative options for your to consider. If there is still no agreement, as part of the Amicable Divorce process both parties agree to have their unresolved issue(s) heard before an arbitrator. The arbitrator, much like a judge, will consider each sides position, and make an order. The difference from mediation is that the parties agree to be bound by the decision of the arbitrator.
Ultimately, the length of time needed is up to the participants. Timing depends on a number of factors. First, how many issues do you need to resolve? A second factor is the availability of both people and their attorneys to work through the process, gather information, and complete outside assignments. Obviously the more efficient people are in gathering and exchanging information, the faster the process moves. Spouses who can agree on information (e.g., the value of the house, the values of bank and investment accounts, etc.) keep the process moving. But at the end of the day, accurate financial information is necessary for both parties to make good decisions. The most important thing to remember, though, is that the process works around the people, not the other way around. The two people, through their attorneys, set the timeline in an amicable divorce.