Alternative dispute resolution can be a wonderful tool in divorce cases. Montgomery County’s Domestic Relations Court, along with many other divorce Courts, have adopted mediation conferences as a voluntary or, in some cases, mandatory prerequisite to trial. I am focusing this article on how that process works in Montgomery County.
So one might ask, “What is mediation?” In this context it is essentially a way of resolving disputes between the husband and wife and to hopefully eliminate issues in the divorce case. In Montgomery County there are two neutral mediators (facilitators) involved in the session(s). One is a lawyer who has experience as a divorce court magistrate and the other has a family services social worker background. They work to assist the parties to negotiate their own settlement. They can let the couple know what the laws are, but not give legal advice, and try to guide them through the complicated process in a way that helps them find solutions.
Lawyers may or may not attend the mediations. The sessions are completely confidential. No notes or writings generated by the parties or their lawyers in the mediation are allowed to leave the room. The mediators will generate a report indicating what has or has not been agreed upon. So there may be a partial or complete agreement depending on the issues in dispute and the willingness of the parties to exercise “good faith” in the proceeding. Mediations can either be binding or non-binding. In this context they are non-binding, meaning that the “agreement” reached cannot be enforced with the Court.
Each party should be well prepared for the mediation. Even if your lawyer will be by your side his/her participation will be very limited. The objective is to encourage the parties (not lawyers) to discuss and try to resolve all issues! I have attended many mediations with my clients.
Here is the format of how the mediation will be conducted…
- The mediators will introduce themselves and go over the purpose and “rules”for the mediation. They will ask both parties to read and sign a document consenting to the mediation. They will also advise that everything said is confidential (with the only exception being their duty to report suspected child abuse or information about a future crime).
- Once the mediation process starts they will ask, “Who wants to go first and present their side?”The mediators will be fair and balanced and use their skills to keep everything on a “level playing field”.
- Regardless of the topics that the parties had on their agenda coming into the mediation, the facilitators will eventually put a form on the monitor and work through ALL potential issues in the case.
Here is an Outline of that Order:
- Grounds for Divorce (Incompatibility)
- Length of Marriage (date of marriage and termination date)
- Spousal Support
- Child Related Issues
- Custody and Allocation of Parental Rights
- Child Support (guidelines or non-guidelines)
- Dependency Tax Exemption Allocation
- Health Care for Children
- Other Child Expenses (i.e. College, extracurricular, private school, life insurance, etc.)
- Division of Property
- Real Estate
- Household Goods and Furnishings
- Financial Accounts
- Stocks and Bonds
- Life Insurance
- Retirement Benefits
- Misc. Other (Tax Refunds, etc.)
- Misc. (Trusts, Stock Options, Country Club Memberships, Frequent Flyer Miles, etc.)
Knowing the manner in which the mediation is conducted in advance, as well as the order that topics will be brought up, can help you better organize your thoughts and prepare for the session. Be sure to discuss if you do or don’t want your lawyer to attend the mediation. Regardless of their attendance, be sure to be prepared to discuss all the items above.
Perhaps the quote from Henry David Thoreau is appropriate to restate here, “Could a greater miracle take place than for us to look through each other’s eyes for an instant?” Great advice for both parties…Best of success in your mediation!
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.