Part 2 of our 10 part series
In divorce mediation, not only do the parties determine the outcome of their agreements concerning their property and family (rather than the court making orders), they may also dictate the pace at which they complete their matter. To illustrate the flexibility of divorce mediation, let’s take a look at Couple A, Couple B and Couple C.
Though they haven’t filed for divorce yet, Couple A has been separated for a long period of time, have reached informal agreements regarding the division of their property, and have a pretty good handle on spousal and child support; but they need help to flesh out the final details of their divorce. They have decided that mediation is the way to go. Since there is no need for Couple A to appear in court because they have chosen mediation rather than litigation, they are not at the mercy of the court’s impacted calendar and can complete their divorce in a timely manner.
Couple A comes in for their first session and agrees to have Divorce Mediation Group prepare their initial papers for filing. They begin working on their Declarations of Disclosure (a step required in all divorces, mediated or litigated) and finish those documents in time for their second session, at which time they finalize their agreements concerning property, support and children. Their Marital Settlement Agreement (“MSA”) is then prepared by their Divorce Mediation Group mediator. After a couple rounds of revisions, the MSA is finalized and the accompanying judgment forms are prepared for Couple A’s signatures; the entire judgment packet is filed with the court.
It is conceivable that Couple A, moving along at their chosen brisk pace, may complete their divorce by the end of the 6-month “cooling off” period mandated in California.
Couple B chooses to move more slowly through the process because their assets are complex and require special analysis.
Couple B owns a business and have agreed that Wife will buy Husband’s share of that business. They choose to utilize the services of a professional business valuator to arrive at the value of the business. Additional time may be needed to negotiate the worth of that asset; they may need an extra mediation session to discuss their agreements concerning it. In addition, Husband is eligible for stock options offered by his employer; Couple B chooses to have those options valued by an expert, which may add several weeks to their divorce timeline.
Since Couple B has chosen mediation and is not constrained by the court’s orders or deadlines, they have the luxury of proceeding at a pace that allows them the time they need to analyze the value of their assets, allowing for meaningful settlement discussions and finalization of creative agreements.
The decision to proceed with divorce and tackle the steps necessary to complete the process involves processing the pain, anger and fear associated with a major life change; sometimes people just want to move at a pace that is comfortable to them. Couple C chooses to schedule their mediation appointments weeks or months apart and to consider carefully each step of the process: filing their initial paperwork, finishing their disclosure documents and authorizing the drafting of their MSA.
Couple C may also wish to wait until they have a) sold the family residence, b) their child has graduated from high school, or c) one of the parties has recovered from an illness before advancing to the next stage of divorce. In other words, they wish to plan their divorce around life events. There is no one pushing Couple C to “hurry it up”; the mediator and staff at Divorce Mediation Group wholeheartedly respect their desire to set their own time table.
Litigation Does Not Allow the Same Control.
In contrast, in litigation the parties are bound by deadlines set by attorneys and the court. When one of the parties sets a hearing, automatic deadlines go into effect: written declarations and responsive must be filed and formal discovery cut-off dates are triggered; the parties are at the mercy of the court’s time table. In addition, because the court is so impacted and is working under severe budget and personnel cuts, parties must often wait months before appearing in court to have their matter heard.
Judges, though extremely competent and caring, spend very little time with the parties in the courtroom and make important decisions for the parties with limited time and information. Mediation allows the parties to reach agreements outside the confines of the court’s limited options.
Couples A, B and C all benefit from the flexibility built into the mediation model to create their own agreements at a pace that they control.