An Overview of the Process
Although every mediation is different, there is a typical flow to how the cases happen and what mediation looks like. Below is what a typical mediation process might look like for a divorce with minor children. If there are no children or the issues are limited, the process will look similar but the timing may be different.
The Initial Call
We will usually get a call from one of the parties looking to get some information on the mediation process. Some clients know that they definitely want mediation; others don’t really know what it is and just want to learn what options exist. During that first call, we are happy to talk about the process in general and help answer any questions you have about how the overall process works. We will ask you some general information about your family, your conflict and where you are in the process. That call is generally about 15-20 minutes and does not dive into the details of the conflict. At the end of that call, if mediation is an option that you want to explore further, we offer two options. First, we are always happy to talk with the other party on a similar call. Second, we offer a free information session for both of the parties to come in together and learn more about the process.
Joint Information Session
There is no charge for the joint information session and it can be done in person or over the phone. These usually last between 30 and 60 minutes depending on how many questions people have. This first meeting allows both of the parties to meet one of us and ask questions about us or about the process itself. It is important that both of the parties feel comfortable with the person they are hiring as a mediator. There is no obligation to hire us after this session and we encourage you to talk with other mediators if you don’t think we are the right fit.
At that first meeting we will give you a packet of information to help you in the process. These include copies of relevant court forms, statutes related to divorce and parenting, and information on the child impact program. There is also a detailed form that we created that asks questions about your family, your marriage, your finances, and your present situation. It also has a list of financial documents that you need to gather. Most clients refer to this as their “homework.” Completing the packet, helps you gather the information necessary to work through the divorce.
At that information session we will also review the Agreement to Mediate. The agreement lays out the fee structure and billing information and also explains the rules regarding confidentiality and the role of the mediator in the process. We are always careful to discuss with parties that as a mediator we cannot offer legal advice. We can give you legal information but we cannot advise you. Click here to see an example of the Agreement to Mediate.
At the end of the meeting, we encourage the parties to take the information home and review it. If they want to work with us, they can contact us to schedule the next event. Mediation is a voluntary process that both parties have to agree to the process. Some parties want to sign the agreement right away and schedule the next meeting as soon as possible. In that case, we will work to set up the private preparation meetings.
Private Preparation Meetings
After the joint information session, the next event is a private meeting between the mediator and each of the parties individually. The purpose of these meetings is to give each of the parties the opportunity to talk with the mediator privately to discuss their own fears or questions about the process or the conflict itself. It is incredibly helpful for the mediator to be able to talk with each party and find out how to make the process the most comfortable and effective for them. It is not about convincing the mediator that your side is right. There is no “side” as a mediator but it is important that both parties have the opportunity to share their perspectives and concerns. At this meeting we will usually ask questions such as: “What do you think will be the hardest part of these discussions?”, “What does it look like when the two of you disagree?”, What things have you already agreed on?”, What are you most worried about?”. We will also talk about how to make the process more comfortable for you. Some clients tell us they need frequent breaks, some ask that we make sure that they stay focused on the task at hand and some tell us they would prefer to be in separate rooms for certain discussions. We know that these situations are incredibly emotional and difficult so we want to make sure we do what we can to help ease that if possible.
First Mediation Session
After we have met with each of the parties, we will schedule the first mediation session. These sessions are typically 3-4 hours long and are usually held at our office. To make the most of the time, we ask that you complete the family information packet before that first session so we have time to review it before we meet.
At the first session, we will usually start by seeing if there are any pressing matters that the parties need help addressing. Although the goal may be to reach a final agreement on the division of assets and parenting, some families need to address short-term issues first. For example, one party may be moving out of the home and there needs to be a discussion about how that will happen. Others may be living in the same home, but they need to determine how to handle finances and parenting while they do that. Finding room for agreement and creating a structure around how those things will happen can help both parties feel more comfortable while they work toward a final agreement.
If there are no pressing issues, we usually start with a review of the finances. This helps determine if further work needs to be done to obtain values for things such as a home or a business, or if it may be beneficial to get other experts involved such as a financial advisor or tax advisor. The goal is to create a list of all of the assets and debts of the family with values for each that the parties agree on. There is usually some follow up that needs to be done in order to accomplish this so it is common to be sent home with “homework.” We will then usually check in on parenting if there are minor children involved. We may even start talking about a parenting schedule or discuss upcoming holidays.
Mediation Summaries and Follow-up Emails
After each session we will send out an email detailing any agreements that were reached and any follow up needed.
The most frequent question we get is “How long will it take?”, and our answer is always the same -“that depends.” How many sessions you need to reach an agreement depends on a host of different things. It depends on how much you have already agreed upon, how complicated the finances are, and how quickly each of you process information and make decisions. A typical case will take between 3 and 5 sessions and may take place over a month or over a year -that is up to the parties. It is not uncommon to have one party who wants to “get it done” and another that needs or wants more time. Finding that balance is part of the process and something that the mediator helps figure out.
At these future sessions, we will walk you through step by step as to the issues that need to be decided. The benefit of our extensive experience in both mediation and litigation is that we know the potential areas of future dispute. For example, in discussing a parenting schedule, we will need to address what a “week” is: Is that Monday to Friday, is it Sunday to Sunday? With retirement we will walk you through the process required to split accounts and help set forth how that will be done. Defining and clarifying these issues help reduce future conflict.
Child Impact Program
In a parenting or divorce, if there are minor children, both parties are required to complete the Child Impact Program before the court will issue a divorce or parenting decree. There are options for the location and timing of the programs. Parents are not required to attend together. This link has a list of the providers: https://www.courts.state.nh.us/forms/nhjb-2068-f.pdf
The Final Agreements
If you are able to reach a full agreement through mediation, we will take those agreements and draft the required documents. In most cases this is a Final Decree, Parenting Plan, and Uniform Support Orders. If it is post-divorce, we can help draft the agreement to modify or amend. If nothing has been filed with the court, we can also assist in drafting the filing paperwork and preparing a complete packet for filing with the court for approval. We will send you drafts to review on your own or to have reviewed by an attorney. Once both parties agree that the drafts are ready to be signed, we will arrange for a final meeting so all the documents can be executed. Once that is done, they are filed with the court for approval. After filing, it typically takes between 2 and 4 weeks to get the approved agreements back from the court. The agreement becomes a court order when the Judge signs and approves it.
Some clients will ask to schedule another mediation session after the agreement has been approved to make sure that all the deadlines and follow-up are complied with. In more complex financial cases this can be a beneficial way to ensure that all the accounts have been properly transferred or closed. It can also be used to check in on parenting schedules and transitions if needed. Many clients will also include a mediation provision in their agreements, requiring that if there is a future dispute, that the parties will return to mediation prior to asking a court to decide the issue.