A Typical Mediation

by Michael Stokamer

Michael Stokamer with clients

No two mediations are alike. The following is an example of how a typical mediation progresses, from the time of the first call, to the preparation of the legally binding Agreement. The family and their circumstances are fictional and are presented only to illustrate the mediation process. The first session is ½ hour; most other sessions last for 1 to 1 ½ hours.

The couple: Richard and Sally have been married for 14 years. They have a six-year-old daughter, Jessica, who is in kindergarten at a public school. Richard works for a large corporation in the Human Resources Section. Sally was a schoolteacher in the public school system until their daughter was born. Since then, she has been a stay-at-home-mom, caring for their daughter. In addition, she tutors children in her home for a few hours a week.

February 16: The initial call: Richard calls my office after a friend referred him to me. He and his wife have decided to divorce, and they want it to be as painless as possible. After a brief description of divorce mediation, I advise him to talk to his wife and call back to make an appointment for a free ½ hour consultation where I can describe the process to both Richard and his wife together, and answer their questions.

February 19: Richard and his wife, Sally, call and make an appointment for the following day.

February 20: Richard and Sally come to my office. They fill out short forms to record basic family information, such as name, address, marriage date, names and ages of their children, occupation, etc. I explain the issues that will be covered and answer any additional questions. I remind them that as a mediator, I am a neutral party and that I do not represent either one of them. My role is to identify the issues, explain the applicable laws, facilitate discussion and keep track of the agreements that they reach on individual issues that will ultimately be incorporated into their final legally binding agreement. They make an appointment to start mediation a few days later on February 24th.

February 24: Sally and Richard come to my office for the first mediation session. The first topic that they need to discuss and decide upon is residential custody — that is, where their daughter, Jessica, will live. Sally wants residential custody. That means she wants Jessica to live exclusively with her. However, she agrees that Jessica should spend every other weekend, from Saturday morning until Sunday night, with Richard. She also believes that Richard should be allowed to take Jessica out for an early dinner one evening during the week. Richard does not agree. He wants to be a "real dad" and have joint residential custody. He suggests that Jessica spend alternative weeks with each parent so that he can be more than a visitor. The couple starts to argue, bringing up past deeds and misdeeds that led them to decide to divorce. I acknowledge both of their feelings, and redirect the conversation towards the future and the best interests of the family. After offering some alternatives that they had not thought of, they agree that Richard will pick up Jessica from school on alternate Thursdays and that she will stay with him until Monday morning when he will drop her off at school. On the alternate weeks, Richard will pick up Jessica from school on Wednesday and she will stay with him until Thursday morning when he will drop her off at school. The next session is scheduled for March 2.

March 2: Richard and Sally discuss holidays and vacations, and where Jessica will spend them. At first they have some trouble agreeing, and they ask me for suggestions. I tell them what other couples have done, and offer some ideas that may meet each of their needs, and best serve Jessica's interests. By the end of the session, they have agreed on a plan for holidays and vacations. The next session is scheduled for March 9.

March 9: At the beginning of the session I explain what is meant by legal custody, and tell Sally and Richard the options. They decide that both parents should agree on all major decisions affecting Jessica. That is known as joint legal custody.

I also explain that that both parents are obligated to support their daughter. I tell them about the Child Support Guidelines, a law that provides a formula for determining the amount of child support that the parent who is not living with the child (non-residential parent), is presumed to pay. We discuss Jessica's financial needs as well as Richard and Sally's incomes and budgets. The couple have many questions about the Child Support Guidelines, and they cannot reach an agreement on these issues, but agree to think about their own needs and abilities, as well as their spouse's and daughter's needs. Because of the nature of the discussions, the couple and I agree to extend this session to two hours. The next session is scheduled for March 23, to give Sally and Richard time to consult with their own accountants or attorneys, and to go through their budgets and financial records.

March 23: Both parties have a good idea of their daughter's financial needs and of their own financial needs and abilities. They share the information and their thoughts and agree on the amount that Richard will pay in weekly child support. They also discuss other expenses that will come up, such as unpaid medical bills for their daughter, child care costs that will be incurred because Sally will have to get full time employment, and other extra expenses such as music lessons and summer camp expenses. Rather than a dollar amount, they agree on a percentage split, after both have discussed and agreed upon the expense, in advance. They agree to discuss college costs when their daughter reaches the age of 16. We schedule the next session for March 30.

March 30: Sally agrees that she will get full time employment, but in order to do so she will need to go back to school and take some refresher courses. She will also have to accept entry level pay to get a job as a teacher. She will need some temporary financial assistance from Richard until she can "get on her feet". Richard objects to paying any more than child support, saying that he cannot afford it. With my help, the couple reviews their own budgets and each agrees to make some downward modifications. Sally agrees to take on more students to tutor; Richard agrees to pay a modest amount of maintenance; and the couple agrees to take a home equity loan against their equity in their condominium to make up for any serious shortfall. They discuss and agree upon the amount and duration of the temporary maintenance. The next session is set for April 8.

April 8: At this session Richard and Sally discuss the division of marital property. I explain what marital property is. Richard and Sally agree that the marital property consists of the condominium that they purchased shortly after their marriage; some mutual funds; Richard's 401k plan and Sally's defined benefit pension plan. Most of the discussion centers on the condominium; when it should be sold and how the proceeds will be divided. The couple cannot agree on the value of Sally's pension and so they decide to have the value appraised by an expert. The next session is scheduled for April 26.

April 26: The couple discusses and agrees upon the division of all of their marital property. I tell them that I will prepare a written memorandum setting out their tentative agreement on all the issues. I suggest that they review it, consult with their attorneys, accountants or other experts, before its terms are incorporated into a formal, written agreement that will be signed by both parties and will be legally binding.

The couple has discussed and agreed on all issues in less than 3 months, at a cost of only a fraction of what it would have cost if each had retained separate lawyers to litigate in court. More importantly, they have fashioned their own agreement based on their own needs, and have learned that they can discuss and agree on future issues, that inevitably arise when a couple has a growing child.