Are there guidelines for what must be included in a mediated memorandum of understanding or in a separation agreement?
A memorandum of understanding includes, in plain language, everything that must be included in the separation agreement. The separation agreement is an enforceable contract, based on the memorandum of agreement, which resolves all legal issues relating to your relationship. Both the memorandum of agreement and the separation agreement may include sections concerning property, children, debts, bankruptcy, income, maintenance or alimony, and taxes. The content of these sections depends on your particular situation. The property section, for example, may include designations of what is marital and what is separate property; it may divide pensions; it may define property rights or right to future income related to licenses, professional practices, and businesses; and it may define ownership of real estate and personal property such as furniture, cars, artwork, investments, and pets. If you have children, then all terms related to the children will be in the agreement. These will include parenting arrangements, visitation, grandparents' visitation, provisions for relocation, child care, medical expenses, schooling, college education, travel, and emancipation. Other areas of the agreement will be similarly detailed. You'll find both a comprehensive list of decisions to be included in the separation agreement and a sample Memorandum of Understanding in the Resources section at the end of the book.
Even though I have a lawyer, I want to use a mediator. Can my lawyer and the mediator work together?
You may consult with your lawyer before, during, and after the mediation-whenever you think it would be helpful. You might want to use your lawyer as a consultant to help you negotiate more effectively. And your mediator should be willing to consult with your lawyer at your request. Once the settlement agreement is written by a neutral attorney, you can use your attorney to review it and to advise you whether further mediation is necessary to clarify or to resolve additional issues. We know that some mediators allow both clients to bring their lawyers to mediation sessions, although they do encourage the lawyers to take an observing, advisory role, rather than their more usual adversarial One. Frankly, we can't imagine doing this. We can't picture two New York litigators being in this situation and not being confrontational! But if you think it might work for you, by all means discuss it with your mediator during the consultation. In many jurisdictions, court-ordered mediation differs considerably from private mediation on this issue. See Chapter 10 for a discussion of court-ordered mediation.
When should I refuse to mediate?
There are circumstances where mediation is not suitable. Are you afraid of your spouse? You should not attempt mediation if there is a recent history of domestic violence or child abuse or where an atmosphere of intimidation and fear is clearly present, because you might feel forced to agree to terms that would not be in your best interests. For an exception to this rule, see Chapter 10, Question 12, for a description of certain court-ordered mediation programs in which special procedures are used to facilitate mediation in selected cases where there is a history of domestic violence.
In some circumstances, it is appropriate to delay mediation until both of you are emotionally ready to focus on the very detailed process of mediation. Separation is usually a highly emotional experience, and if you are so severely depressed or in such an extreme emotional state that you cannot focus, you may need a little time to stabilize. Sometimes a therapeutic experience or a support group is helpful at this point.
An experienced mediator recognizes if you are not suitable or ready for mediation, and advises you accordingly.
Are women at a disadvantage in mediation?
We don't think so. There are two stereotypical attitudes about women that lead to this question. One is that women don't know and are unwilling or unable to learn about financial issues. The other is that women will give in to keep the peace. In our experience, this is generally not what happens in reality. Women often handle household accounts and work in jobs where they are required to be knowledgeable about finances. If they are inexperienced with financial matters, we find that they learn as well as men do when provided with information by the mediator. In one mediator's cases, the wife handled all household and business accounts for her husband's business. In fact, only the wife had consulted with the accountant. The mediator had to insist that the husband visit the accountant so he could better understand his own finances. Women and men are diverse in their knowledge and bargaining skills. There is no telling who will be the best informed about financial details or in better emotional control, but it is our job as mediators to be certain that both parties have all the information they need and to make sure it's understood. It is the mediator's responsibility to generate various choices and to explore trade-offs so that there is no intimidating, black-or-white choice to be made. In clarifying whether the solution seems fair to both parties, we make certain that both voices are heard.
What is co-mediation?
Co-mediation involves two mediators working together with the couple. Sometimes they have different areas of expertise; one may be a mental health professional and the other may be an attorney. Sometimes a more experienced mediator is teamed with someone in training. Some mediators like to use a male-female team. The advantages of having two professionals to help develop the agreement are: more ideas, more expertise in the room, different points of view to create more options. Possible disadvantages are: two mediators may cost extra; a trainee is less experienced; it may take longer to get an agreement; and additional issues are created by having two mediators who may have different approaches. In court-ordered mediation, there is a lot of variation from place to place in the use of co-mediation. For example, in certain Connecticut courts, all mediations are conducted using male female co-mediation teams. See Chapter 10 for more about court ordered mediation. Recently, a lawyer/mediator co-mediated a session at the request of a therapist/mediator. The spouse had requested that a single session be arranged in this way because he wanted to move out of the house before the separation agreement was completed. Usually, it's important that a temporary move agreement include detailed information to protect the legal rights of the spouse who is moving out. This type of co-mediation allowed for more options to be explored and for the arrangements for moving to be finalized legally and efficiently.
What if I change my mind about getting divorced during mediation, or after the separation agreement has been signed?
You can always change your mind during mediation and negotiation of an agreement. Mediation allows time to examine all documents and financial records, to consult with attorneys and other experts if necessary, and to understand the agreement in its totality. Once signed, most agreements provide that changes must be made in writing and signed by both parties. If you have signed the agreement, but now you both agree that you want to resume the marriage, together you can sign a document voiding the agreement. If only one of you decides against divorce after the separation agreement is signed, you might be able to block the divorce by contesting the grounds for divorce or by arguing that the terms of the agreement have not been followed. However, the separation agreement may remain in effect as an enforceable contract. As always, the child-related provisions of the contract are subject to court review to be certain they are in the best interests of your child. If your spouse has failed to reveal significant financial information prior to the signing of the agreement, you can, of course, go to court and ask that the agreement be invalidated. Parties in mediation are advised of this early in the process. To avoid any problems, think through your decisions carefully and discuss concerns early in the process. If you have misgivings about divorce, you may want to speak with a therapist or couples counselor. See also Question 15: My spouse wants to continue the marriage and won't discuss separation or divorce. Can a mediator help us?
What if circumstances change after we're divorced and the separation agreement needs to be changed? Can the mediator help?
A mediator tries to plan for anticipated changes as much as possible when writing the separation agreement and to provide for alternative ways to resolve issues related to future unexpected events. You may want to make changes in the agreement, for example, if you or your former spouse have a significant increase or decrease in income, or if one of you has unanticipated and costly medical expenses, or if one of you wants to move to another state. Any of these circumstances may result in a need to make changes. One mediator helped one couple change their parenting arrangements. The agreement worked out in court after several years of bitter litigation involved such a detailed parenting plan that the couple were forced to have contact with each other for the slightest adjustment. The frequent conversations usually developed into arguments, and they were exhausted by the arrangement. In the mediation session, they examined the sources of the tension between them and revised their agreement, so that much less consultation was required. See also Question 9 in Chapter 4: Can child support be increased or decreased after the agreement is signed? Couples often agree to a clause in the separation agreement stating that mediation will be attempted if a specific problem arises. If mediation fails, arbitration is usually the next step. See Question 4: What is the difference between mediation and arbitration? We would encourage you to discuss the changes with one another, and then to schedule a mediation session. In the session, we would help you to renegotiate the issue in question, and then a rider incorporating agreed-upon changes would be properly executed and attached to the original agreement.