A Glance Into A Legal Mediation Consultation
When spouses meet me in a legal mediation consultation, it’s an opportunity for them to learn about my background and philosophy, to get a full understanding of how this firm operates, to get a roadmap of the legal process of divorce or legal separation, and to get questions answered about their specific case. While it’s impossible to reproduce the experience of sitting down with an attorney to discuss your divorce, what follows is a brief story of a legal mediation consultation.
Bonus: Prospective clients who review the orientation contained in this article can save time and money by diving straight into the specifics of their case.
Introduction
To introduce myself, I’m a second-career attorney, who brings training in the healing arts to my practice. I went into family law specifically to bring a healing approach where it’s most needed. I’ve been through a divorce myself, so I know the terrain personally. As a father, I’m passionate about the well-being of children, and what’s best for children is reducing conflict between their parents and helping the parents to create a new foundation for a stable and nourishing life. After law school I worked for several judges to learn the nuts and bolts of family law, and then for a small family law litigation firm in Boulder. I co-founded Conscious Family Law & Mediation to focus on mediation as a way to help people avoid the pitfalls of the “adversarial” court system. I believe, if done right, the divorce process can be a rite of passage, and an opportunity for each person to grow. Divorce can provide a lens on what is “my stuff,” and what is the other person’s stuff. If handled in the right way, this passage can equip people to architect a bright future for themselves, including being part of a functional co-parenting team, and to have healthier intimate relationships in the future. I’m a trained and devoted meditator, and I try to bring mindfulness practice into my work and in service of my clients.
Your Vision
My consultations start with a short guided meditation, during which everyone closes their eyes, and sheds any stresses, pressures, and anxieties from the outside world. I then invite the spouses to project themselves forward to a happy moment they sense coming in their future, about five years from now. I ask them to take stock of the vision that comes to their minds: where they are, who’s with them, what they’re doing. After gently saying goodbye to this happy future moment, I explain that while sometimes it’s useful to share the vision, often it’s just an internal anchor as each spouse considers decisions and actions that will propel them toward this future.
What is Mediation?
I then describe “mediation” (which most people have never experienced before) and how we offer it. Conscious Family Law & Mediation is a law firm and I am a lawyer, but as a mediator I don’t operate in the classical way lawyers operate. I am neutral to the parties, and I don’t represent either spouse. I also don’t give “legal advice,” meaning I don’t help either side maximize his or her legal position. But I can bring my expertise and experience as a lawyer into the room, and help educate the parties about the legal landscape. My role is therefore largely as a facilitator, guide, and educator.
Our version of mediation is a collaborative and holistic process. It is designed to help spouses come through the divorce process as a functional family or co-parenting team, according to their mutual vision. We accomplish this by focusing equally on the individuals (including any children), as well as the family unit as a whole. The process entails the spouses working together to arrive at a mutually satisfactory outcome as to all required and relevant issues. Almost all of our clients successfully reach full resolution, disentangling themselves legally and financially, while keeping as much of a personal, family, or business connection as they desire. Ideally the resolution is one that feels good to each party, although occasionally a “successful” mediation process leaves both parties feeling not so good, but in about equal measure. In the latter case, this is evidence that there’s been give-and-take, and some compromise on both sides.
My role includes helping the parties identify all appropriate options, helping them evaluate those options, and then facilitating the negotiation of a global resolution that best serves their individual and mutual goals for the future. Because a judge must review and approve all legal settlements in a domestic relations case, once the parties reach agreements in principle my team will formally memorialize those agreements in a way that will be understood by the court, and that anticipates and addresses any questions a judge might have about the legal agreements.
The Process
Most clients work with us prior to filing anything with the court. That allows for flexibility on timing of getting everything finalized, without any external pressure or deadlines from the court. We recommend that parties get final settlement documents reviewed by independent counsel, because these are important legal agreements. But most of our clients don’t take that step because we’ve discussed all the issues in detail, and I’ve done my best to make sure both parties understand every facet of the settlement.
Mediation is a confidential process, protected by statute. That means my office (virtual or actual) is a safe space to voice concerns, fears, and questions, and to explore creative solutions. What is spoken here stays here, unless otherwise subject to being called into evidence by a judge. But I can’t be called to testify in court, and my notes can’t be subpoenaed.
Nothing is final until reduced to writing and signed. Once parties have reviewed and approved all documents, we provide final paperwork with filing instructions, and one party then takes this to the court and pays the filing fee. If the parties are not parents, they can request a decree without any court appearance at all. If children are involved, the parents will have to appear at least once for a short “non-contested hearing,” at which time the judge has them raise their right hands, testify that everything is fair and equitable and in the bests interests of children, and looks into their eyes in an attempt to make sure they understand everything. This is also the opportunity for the judge to ask questions (if any) about the settlement. If I’ve done my job right, the judge won’t have any questions, and this is the report we hear consistently from our clients. If the court approves the settlement, parties receive their divorce decree by mail sometime shortly after the mandatory 90-day waiting period.
Team Approach
As I’ve alluded to, we employ a team approach at Conscious Family. We use the least expensive, appropriate team member for each task. In addition to the lawyers and paraprofessionals at our firm, we often contract with other neutral, independent professionals to assist in the process. Most frequently we call on a Certified Divorce Financial Advisor (CDFA) to help the parties work through short- and long-term financial planning issues, evaluate different settlement scenarios in terms of tax impacts or other planning implications, and to help value certain kinds of assets like pension plans or businesses. I’m not a financial analyst or financial planner, and I don’t want clients coming back to me in five years complaining that the financial settlement terms didn’t work as hoped. It’s usually worth the consulting fee of this professional if there are any financial complexities, even something as seemingly simple as the title transfer and refinance of a home. Another neutral professional who sometimes joins the team is a child expert, to assist if the parents are having trouble agreeing on what is in the best interests of their children.
Rules of Engagement
Finally, I share our Rules of Engagement.
We require clients to adhere to the standards of Integrity and Respect at all times, which is also laid out in the Services Agreement that clients must sign before embarking on a mediation process with us. In a nutshell, clients must be open and transparent with all court-mandated, information disclosure requirements. And we require parties to negotiate in good faith, listening to each other and avoiding game-playing to seek advantage.
Additionally, it’s extremely helpful in navigating the mediation process to Communicate “Cleanly.” By this we mean speaking only for yourself using “I” statements, and checking out interpretations instead of assuming one already fully understands the other parties’ position. Also, Limiting Blaming & Shaming helps people stay focused on the future as opposed to getting lost in the weeds of things that happened in the past.
Finally, the “gold star” level includes Stating When You Are Triggered. There are usually lots of opportunities in this process for either spouse to step on an emotional landmine. No one can be their best and highest self, and make clean statements, when triggered. Sometimes I can read facial expressions or the energy in the room, but not in all cases. Often just naming that something has caused a reaction, and taking a bathroom or water break, is enough to keep moving forward in a productive way. If needed we can come back together at another time, or just come back to the issue later. Often a successful mediation means building agreements over time.
Another option to deal with landmines (even ahead of time) is for me to caucus with one or both parties separately. Caucusing is an opportunity for the mediator and one party to speak confidentially. The point is not to share secrets, or for one side to try and get legal advice, but rather to create a safe space to orient the mediator around potentially delicate or sensitive material, and then strategize together how to introduce it into the collaborative mediation process.
The gold star level also pushes each party to Be Accountable For Themselves. There are lots of opportunities for each person navigating divorce to feel victimized: by the other person, by the marriage, by the law, by the judge, and so on. As psychologist and holocaust survivor Dr. Edith Eger puts it: “You remain a victim as long as another person is responsible for your peace and your happiness.” Owning that you have a major part to play in creating the story of your life is a powerful step to take in architecting an extraordinary life going forward. Mediation is good training ground for taking on more accountability in life, because it demands something of the participants. In the traditional model, each party hires a lawyer, and the lawyer sometimes determines a client’s goals more than the client himself. In mediation without lawyers, no one tells the parties what the “best” outcome is. Each party has to determine his or her own goals, and participate and speak for what they want. And, by the way, mediation is focused on your goals, not just “what the law says.”
Next steps
If the spouses want to move forward with a collaborative divorce mediation process, we can start talking more specifically about their case. We can devote time toward addressing any urgent matters, such as temporary parenting arrangements, interim residential agreements, or how the parties will share in temporary payment of expenses or debts. But usually the remainder of the consult is simply a time to get everyone (including me) oriented around the big issues that need to be addressed, and the goals of each spouse. During this time I do my best to identify any special documents or data the parties need to gather or obtain, in order that all relevant information is on hand at the first full mediation session. Examples of special information might include any of the following:
Appraisal or broker opinions on the “fair market value” of any real estate
The maximum cash that one party could acquire through the refinance of real property
Stock grants and vesting schedules
Family trust agreements and accountings
Schedules and benefit information about any pension plans
Special business records that could give rise to a valuation of the owner’s interest
Once the parties review and sign our services agreement, and pay their retainer, they’ll get scheduled for a brief intention session with our client services team, where the spouses will complete a few exercises identifying their individual and mutual values and commitments. This session is a great way to lay the groundwork for a successful process, after which people are better equipped to sit on the same side at their kids’ graduations and weddings.
Before mediation begins in earnest, the parties will get an email with some homework. We try not to overwhelm people with too much at once, so we address financial and parenting matters (if any) at separate times. If the parties elected to start with their parenting plan, they’ll get an outline to help guide them in thinking through the necessary issues, and a link to the court-mandated co-parenting class.
If starting with financial issues, the homework includes filling out Income & Expense sheets and we provide credentials for a secure portal to upload a laundry list of needed documents. A short orientation call with my senior paralegal helps the parties with this important part of the process, during which time the parties make informal commitments to initial timelines. Once the financial disclosure process is complete (this often takes a few weeks for most people), my paralegal team needs a little time to organize the information and prepare the Marital Balance Sheet and support worksheets. I then get a briefing from my senior paralegal before the first full mediation.
Ultimately, if parties provide thorough information about their financial circumstances, and then focus in good faith to reach agreements, Conscious Family Law & Mediation makes the rest of the divorce process about as easy as it can be. There’s not much risk to at least attempting to work collaboratively in mediation, because all work product we create is provided to the parties, and this work product is either necessary, or useful, no matter how the parties proceed with their divorce.
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In sum, a legal mediation consultation is a time for the parties to determine if a collaborative mediation process will work for them. My belief? Collaboration is almost always possible, with the exception of cases involving significant abuse or mental illness. In those more extreme cases, parties are not even making it to a consultation together! (For people who are not sure if they might be one of the exceptions, Conscious Family has developed a simple quiz to help determine if mediation is suitable.)
John Hoelle is Co-Founder of Conscious Family™ Law & Mediation, offering collaborative divorce mediation, or legal representation with strength and integrity, in metro Denver/Boulder, Colorado.
