Different mediators structure their mediations differently, but as a general rule, Early Mediation will be broken up into shorter sessions over a period of weeks or months.
Typically, the parties do not bring lawyers with them. There will often be homework assignments between sessions, such as making lists of assets and debts, obtaining various kinds of records or other documentation, and getting valuations performed on significant assets (such as a house or retirement plan).
The mediation sessions themselves should focus on issues the couple is having trouble with, such as agreeing on values of property, or in some cases agreeing on incomes (where incomes are not regular, such as commission-based or from owning a business).
A reasonable division of assets and debts needs to be resolved, and often a parenting plan must be worked out as well. Finally, there are often support issues to be settled.
I believe that Early Mediation works best when it focuses on the interests of the parties rather than legal arguments. This allows them to work together to develop solutions that meet their needs rather than getting fixated on positions based on what a court would do.
Typically Early Mediation sessions are face to face, with the mediator guiding the conversation between the parties.
Often the mediator helps the couple work through several stages:
Agreeing on the underlying facts.
It is difficult to discuss how to best divide property if there is still a dispute as to what property exists or what it is worth. If the parties are having trouble agreeing on the facts, then it may be suggested they bring in an outside expert, such as an appraiser, to help break the logjam.
Part of the reason for having a mediator is that a couple on their own will often get stuck at various points, whether those are disagreements about facts, or respective needs, or even about basic fairness. Mediators have many tools in their tool bags for helping a couple break through these stuck points so they can continue to move forward.
Working out the parties’ respective interests.
This is simply a matter of finding out what the goals and needs of each party are, in the most basic sense. This often means drilling down from what comes out first. For instance, one person may say that they really want to stay in the family home. With further exploration, we may find out that the reasons they want to stay in the family home have to do with a sense of financial security, or with keeping the children in their current schools, or with sentimental attachment to the house itself.
Developing scenarios that are responsive to those interests.
Looking at the example above, if we identified that one person wants to stay in the family home because they want the financial security of owning a home, we can also explore whether there may be other options that would also fit that goal.
For instance, both parties could cooperate in selling the home and purchasing a new one for that spouse that is more affordable and will free up cash for living expenses.
Once the couple has developed some possible scenarios, we can work on narrowing those down to choose which is the best fit, or even choose pieces from more than one scenario to build a new and improved scenario!
Drafting a memorandum of understanding outlining the agreements the couple has made.
The memorandum should be clearly written by the mediator so that an attorney can reduce those agreements to the necessary legal documents to process the divorce.
Even though our mediators are attorneys, under Washington ethical rules they should not act as both neutral mediators and attorneys in the same case, but we can recommend outside attorneys to assist the parties with this step if they do not already have attorneys they have been working with.
If you are interested in finding out more about Early Mediation, give us a call at 206-784-3049, and be sure to let the receptionist know you are specifically interested in Early Mediation so she can schedule a joint initial consultation with both of you.