Divorce Law Monitor

Dos and Don’ts of Divorce Mediation and Conciliation

January 31, 2024

   

Mediation or conciliation can help resolve your divorce amicably and without contested litigation in Court. For many divorcing couples, mediation or conciliation can provide numerous benefits, including:

  • Reducing time and legal fees spent on litigation
  • Maintaining a more positive relationship with your spouse post-divorce
  • Focusing on working together with your spouse to resolve child-related issues collaboratively and in the best interests of your children
  • Getting divorced more quickly
  • Keeping many of the specifics of your divorce confidential and not accessible on the Court’s docket

To make the most of mediation or conciliation as part of the divorce process and maximize your chances of successfully resolving your divorce without litigation, it is important to be aware of some “dos” and “don’ts.”

Be Prepared

Going into mediation or conciliation unprepared is a surefire way to end up agreeing to something you might not have agreed to had you been fully prepared. Think carefully about what issues you’ll need to address in mediation or conciliation and what documents and information you need to address those issues fully. If you’re on amicable terms with your spouse, speak with him or her about how you might resolve these issues:

  • Child custody, including physical and legal custody, a parenting plan, holiday and summer vacation parenting time, and any other non-financial, child-related issues (for example, communications between you and your spouse, FaceTime/calls during the other parent’s parenting time, notification of travel plans, access to educational and medical records, etc.)
  • Financial issues, including alimony and/or child support, division of marital assets and liabilities, payment of college, extracurricular, and uninsured medical expenses, and life insurance as security for support obligations
  • Health insurance coverage for you, your spouse, and your children
  • Tax issues, including tax filing status while the divorce is not yet final, who will claim the children as dependents on future tax returns post-divorce, and who will claim the mortgage interest deduction, if applicable

If you and your spouse cannot discuss these issues in a general way because of conflict between you, your counsel and your spouse’s counsel should communicate about these issues and how each of you see resolving them. The easiest way to handle this may be through exchanging settlement proposals prior to mediation or conciliation so that you can see exactly how far apart you are in terms of your respective positions and to narrow the issues for discussion at mediation or conciliation, if possible.

If you and your spouse are not in agreement regarding custody or are not likely to have the same perspective as far as what parenting plan would be in the best interests of your children, consider what information and/or documents to gather that would be relevant to the issues of parenting time and custody. These could include:

  • School (including IEP) and/or daycare records
  • The children’s medical records
  • Communications between you and your spouse relating to the children
  • Communications either you or your spouse have had with any third parties, such as teachers, medical providers, caregivers, and family members relating to the children
  • DCF records
  • Police reports

To have enough information to agree to any financial settlement, you should prepare for mediation or conciliation by exchanging at least some financial documentation with your spouse. Specifically:

  • Financial Statements (a Court form used to report your income, expenses, assets, and liabilities, signed under the penalties of perjury and required to be filed in order for the Court to grant a divorce – ideally, your counsel should prepare this for you or at least review it before you exchange it with your spouse or provide it to the mediator or conciliator)
  • Supplemental Probate and Family Court Rule 410 (“Rule 410”) Documents (the Court requires divorcing parties to exchange tax returns for the past three years, four most recent paystubs, documentation regarding available health insurance, bank, investment, and retirement account statements for the past three years, loan applications, and any financial statements or statements of assets and liabilities)
  • If you or your spouse hold complex assets or have significant net worth, consider exchanging additional documents such as documents relating to any businesses, appraisals of businesses, personal property and/or real estate, gifts and/or loans, credit card statements, and trusts and estate planning documents as part of your due diligence. An experienced family law attorney can help you determine whether these or other documents should be obtained and reviewed to do additional due diligence and ensure that any financial terms are fair and reasonable.

If your marriage was short-term or you and your spouse already have significant access to one another’s financial documentation and information, you can consider exchanging less than three years of the documents outlined in Rule 410. For example, you could limit this to only one year of bank, investment, and retirement account statements.

After exchanging these documents, review them carefully, and ideally, have your attorney review them as well, as your attorney is best positioned to spot issues and possible areas where you should consider follow-up, such as requesting additional information or documentation. Your attorney can also advise you of any appraisals or other analyses that should be performed or considered before you sit down to negotiate or conciliate.

Before meeting for mediation or conciliation, consider exchanging settlement proposals or discussing with your spouse, with or without counsel, to narrow the conciliation issues. This will help you be fully prepared to address the issues where you and your spouse are not yet in agreement without wasting time gathering information, documentation, or discussing positions about any issues regarding which you and your spouse are already in agreement and do not need to address at mediation or conciliation.

Get a Valuation Expert If Needed

After completing your due diligence in reviewing documents, consider whether you should retain a valuation expert to be adequately prepared for mediation or conciliation. For example, if your position is that you should retain any real estate as part of the division of your marital assets and liabilities (or if you know this is your spouse’s position), you may need to obtain an appraisal of the real estate so that it is fairly valued for settlement purposes. Experts might also need to be retained to value businesses, pensions, or personal property with significant value (for example, collections, jewelry, artwork, wine, etc.).

Retain Independent Counsel

The mediator or conciliator is a neutral who does not represent your interests or your spouse’s. The mediator or conciliator cannot give either of you legal advice, even if he or she is a lawyer. Retain independent counsel who represents your interests and can advise you before signing any agreement. Ideally, your counsel should provide guidance before conciliation or mediation so that you understand a range of possible outcomes for all issues and what a reasonable settlement might look like. Your counsel can be present at mediation or conciliation or “on call” if you have questions but are not actually attending mediation or conciliation. At a minimum, you should have counsel review any draft separation agreement before you sign it. Experienced family law attorneys can offer great value by being available to you “behind the scenes” for advice, particularly relating to the specific terms of an agreement, whether there could be any issues with the enforceability of those terms, or whether different language from the language in a draft will set you and your spouse up for less conflict in future regarding enforcement of the agreement.

Decide Whether Mediation or Conciliation is Better for Your Family

Typically, mediators work to get the parties to agree on all contested issues incident to divorce without providing feedback as to how a judge would likely decide a particular issue. A mediator may have a therapeutic rather than a legal background, which may be helpful if the issues you need to address are child-related rather than financial. A conciliator is typically a lawyer who will work more to “push” the parties to an agreement rather than simply facilitate agreement. Although both processes have pros and cons, if you and your spouse are already facing litigation if mediation or conciliation fails (for example, if either of you has already filed a Complaint for Divorce), conciliation may be a better fit, as a conciliator typically pushes both sides harder towards a reasonable compromise or settlement and may be more successful in resolving your divorce as a result.

Choose the Right Mediator or Conciliator

If you have significant financial issues to address in mediation or conciliation, you should strongly consider choosing a mediator or conciliator who is an attorney and experienced in family law, as a mediator with a background in therapy may not fully understand all financial issues or how a Court would handle those financial issues. Regardless of whether you are choosing a mediator or conciliator with a therapeutic or legal background, do your research. This should include advice from your counsel regarding his or her past experiences with any mediator or conciliator you’re considering. Mediators and conciliators, like judges, have particular viewpoints and bring their own approach (including biases) to the process. Your counsel may have significant information regarding individual proposed mediators or conciliators and how they’re likely to view your case’s specific facts and issues. Review any conciliation or mediation agreement with your attorney before you sign it.

Be Open to Negotiation

If you are only willing to accept a single outcome on an issue, it may not be possible to resolve that issue through mediation or conciliation, which requires openness to negotiate. For example, if you are only willing to agree for your children to attend a specific school system and your spouse will only agree for them to attend a different school system, there is no way for you and your spouse to meet in the middle, since the outcomes you’re each prepared to agree to are “all or nothing.” Conciliation or mediation may be a waste of time if either or both of you do not come to the table fully prepared to negotiate and make meaningful concessions on at least some of the contested issues you need to address.

Don’t Be Afraid to Ask for Documentation

Sometimes, even significant preparation before mediation or conciliation is not enough, and questions arise when you’re sitting down to mediate or conciliate. If a document exists confirming information that would make a difference in how you would agree to settle the case, there is no reason why you shouldn’t ask for that document and take the time to review it. It might be a question of accessing an online statement at conciliation or mediation or sending an email to your HR department to request documentation on compensation. There is no reason why you have to agree to something right there and then without having the opportunity to review and consider that documentation and its impact on any settlement on the table.

Don’t Expect Everything to be Resolved in One Session

You can and should hope that you’ll make significant progress toward resolving all issues raised by your divorce at mediation or conciliation. After all, that’s why you’re there. But coming to a full resolution in one sitting may not be possible. It may be necessary for you or your spouse or both of you to take some time after mediation or conciliation to review and analyze documents, speak further with your attorney, make additional calculations, or even take some time to sit with a decision and consider whether it is the right one for you and your family. It’s more important for both you and your spouse to feel comfortable with the settlement while recognizing that, in settling, you’re not going to get absolutely everything you want since compromise is necessary to achieve a settlement than for it all to be resolved in one session.

Don’t Be (Too) Swayed by Your Friends’, Family Members’, or Acquaintances’ Experiences in Divorce Mediation and Conciliation

Every divorce is different and presents different facts and circumstances. Even if your cousin’s friend’s sister walked away from her divorce mediation with $200,000 per year in child support, the marital home, and all three vacation properties, you do not know what went into mediation or what that divorcing couple’s specific circumstances were that led to this result. An experienced attorney will guide you regarding reasonable resolutions of your case in light of your specific facts. If your cousin’s friend’s sister loved their divorce conciliator and thought he or she did a great job, then by all means, consider having that person serve as your conciliator, too, but be careful about discussing the specifics of any other divorcing person’s settlement reached at mediation or conciliation and comparing them to your own.

Don’t Sign Anything at Mediation or Conciliation Unless You’ve Been Advised by Counsel

You can and should take time to review anything that a mediator or conciliator suggests that you sign, including any Memorandum of Understanding or Separation Agreement, with your counsel before you sign it. Do not feel pressured into signing anything without the advice of counsel, especially by your spouse and especially if he or she has her own counsel. You can and should take the time to hire counsel and carefully review any agreement with him or her. This benefits your spouse, as well, since a Separation Agreement is stronger if both parties have the advice of independent counsel before signing it.

Don’t Forget that Mediation and Conciliation are Confidential

Mediation and conciliation are confidential processes, meaning you cannot disclose the specifics of negotiation in any Court proceeding. Regardless of your spouse’s position in mediation or conciliation, you cannot report to the Court that he or she was prepared to agree to a certain term. Bear this in mind if mediation or conciliation is unsuccessful and you end up in Court despite your best efforts to resolve your divorce.

Mediation and conciliation can be incredibly useful in moving forward quickly and efficiently toward a full resolution of your divorce. If you’re attempting mediation and/or conciliation, consider these “do’s” and “don’ts” (and preparedness and advice of counsel are the two keys!).

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