Introduction

Mediation is a private and respectful way to resolve family disputes without court interference. Whether a couple is dissolving their marriage or civil union or ending a romantic relationship that may have resulted in children, mediation is most likely a far better alternative than litigation.

Mediation clearly is not what lawyers traditionally have done in divorce cases. Our adversarial system formerly operated on the belief that a marriage was ending because someone was at fault, that each spouse had a right to virtually unchecked legal advocacy in court, and that warfare would ensue as each party and the lawyers sought to tear down the position of the other party in a winner-take-all duel. Truth and justice somehow were supposed to emerge from what too often became carnage. The fact is that there are no "winners" in litigated divorce cases.

Divorce mediation is not therapy or marriage counseling. Similarly, mediation is not designed to preserve or reconcile marriages. Most people who go through divorce mediation in fact end up divorced. However, because hostility almost always is lower in mediation situations, studies show that most of the parties who successfully complete divorce mediation with a skilled mediator remain satisfied with their settlements and abide by them.

Description of Mediation Process

Divorce mediation involves a mediator serving as a go-between, consultant, adviser and facilitator to the two spouses, in helping them through the legal, custody and financial issues of divorce. I will remain impartial in assisting a couple reach an informed and voluntary settlement. I normally follow specific steps, each step building on the prior steps:

1. I briefly discuss the feelings of each spouse toward terminating the marriage, normally without getting into the cause or reason for the breakdown of the marriage. One spouse often will be more determined to proceed toward divorce than the other. Under Connecticut law, if one spouse desires a divorce, that spouse can secure a divorce. My purpose here is to ascertain underlying thoughts and feelings, because they have an important impact on the mediation process (for example, the spouse who more strongly wants a divorce normally wants to push mediation along more quickly).
   
   
2. I discuss mediation in some detail with both spouses. Mediation is voluntary on the part of all three of us, and we want to be reasonably certain that mediation is appropriate before we begin.
   
   
3. I then help the spouses identify, prioritize and voice their interests meaning their concerns and highest goals. We discuss the concept of interests versus positions. Taking the time to do this helps us all later in the mediation process to create options that maximize the value of the final agreement to both spouses.
   
   
4. I help the spouses identify the issues that need to be resolved. Major issues normally include child custody and the parenting plan, division of assets, responsibility for debts, alimony, child support and educational expenses. Secondary issues include the payment of medical expenses, health insurance, life insurance, income tax matters and the division of furniture and furnishings in a home.
   
   
5. We decide whether to proceed with the filing of the legal divorce case in court, to run simultaneously with the mediation. A divorce case in Connecticut takes a minimum of four months, so the issue here is when the two spouses wish to be divorced. Although we will not serve as the lawyer for either spouse, we will prepare the papers for one spouse to be a pro se plaintiff (with the consent of both spouses).
   
   
6. A major, time-consuming and often tedious next step is the gathering of the relevant facts, pertaining to children, property and finances. Sometimes I recommend that the spouses jointly retain or work with experts such as appraisers, child therapists or insurance agents to clarify facts. We work toward a preliminary understanding as to what constitutes the relevant facts in the case. Examples here would be coming to an agreement about the value of real estate or the necessary expenses of a party.
   
   
7. I guide the spouses through brain storming about all possible options for each issue. In brainstorming, no idea is a bad one.
   
   
8. I then work toward an agreement on all issues. I generally try to reach an agreement on issues one-by-one although obviously one issue is related to the next. I help the parties analyze the options created. The parties consider what they think would be a “fair” resolution of a particular issue and/or what option best meets their respective interests. I normally will not recommend settlement choices, because a potent advantage of mediation is that it permits and encourages the two spouses to keep control of their own arrangements. I will sometimes state, though, what the Superior Court might do in a particular situation or what I see as the pros and cons based upon my experience, in helping guide the parties.
   
   
9. We ultimately work toward a written agreement on all issues. I recommend that each spouse hire an independent lawyer either at the outset of the mediation process or at least to review what we have done in the mediation process before the agreement is signed. Some persons choose not to retain their own lawyer while others do follow my recommendation.
   
   

Confidentiality

1. As a mediator, I do not have an attorney client relationship with either spouse. Therefore, my communications with each spouse are not legally protected by the attorney client privilege.
   
   
2. I will disclose to one spouse the substance of all communications I have with the other spouse.
   
   
3. Notwithstanding the lack of an attorney client relationship, I will not voluntarily disclose to persons other than the spouses and their lawyers, the content or substance of our discussions and communications.
   
   
4. As part of our letter of engagement, both spouses will agree that they will not ask or require me by issuing a subpoena or summoning me to court, to disclose mediation discussions and communications.
   
   

Fees

1. I will ask both spouses to sign an engagement letter when the decision is made to proceed with the mediation process.
   
   
2. Attorney and legal assistant time will be billed at then current hourly rate.
   
   
3. Attorney time for our initial consultation will be billed at the then current hourly rate and is payable at the time of the consultation.
   
   

Advantages

1. Spouses who wish to cooperate and deal with each other respectfully and in good faith can, through mediation, maintain considerable control in devising their own solutions to their own problems in a private setting. Not only is this a healthier and more constructive way to go about divorce, but also a successful mediation helps the two parties take ownership of their settlement and increases the long-run probability for adherence to the settlement reached.
   
   
2. Mediation helps lessen unnecessary hostility and artificial antagonisms that build up in the customary adversarial process.
   
   
3. Mediation generally is less time-consuming and less expensive than a traditional litigated or adversarial divorce. When two parties are open with each other and communicate directly in the presence of each other and a competent mediator, the result likely will be more expeditious and less costly (both in economic and emotional terms).
   
   
4. Mediation eliminates the risks, fears and uncertainties present in every court hearing or trial.
   
   

Disadvantages

1. If mediation fails, stress may be prolonged as the parties move from mediation into the litigation process.
   
   
2. When they initially contact me, some people are uncertain about whether they want mediation, a collaborative divorce, binding arbitration or a litigated divorce. They say that they want me to be involved either way, but, if we start mediation and it fails, I would be disqualified from representing either spouse in litigation or a collaborative divorce or serving as their arbitrator.
   
   
3. If there is an imbalance between strength and experience of the two parties, whether in emotional strength or experience with children or financial matters, the weaker and less experienced spouse is more at risk.
   
   
4. As the mediator, I am not in the customary lawyer's role as an advocate. I must remain impartial. Spouses in mediation sometimes have a hard time in dealing with this fact, expecting traditional loyalty and advocacy they associate with "their lawyer."
   
   

Appropriateness

Mediation is appropriate when both parties:

1. Want to be constructive and exercise respect, good faith and reasonableness toward each other.
   
   
2. Want to put their children first.
   
   
3. Desire to make full disclosure of all relevant financial and other relevant information in the termination of a marriage.
   
   
4. Are emotionally ready and able to negotiate at the same table as their spouse in the absence of their own advocate.
   
   
5. Have a generally trusting attitude toward each other, especially regarding financial facts and issues. Mediations can often be successful even when one spouse was involved in a romantic relationship outside the marriage if the trust level regarding finances remains high.
   
   
6. Have a relatively similar level of sophistication about family matters, including children and finances. This factor is not always absolutely necessary, because, if the preceding conditions are met and the less sophisticated spouse can become sufficiently educated during the mediation process, the result is normally satisfactory.
   
   

Conclusion

Mediation requires three people who wish to go about terminating a marriage in a private and respectful manner. The success of mediation depends upon the candor, desire, sensitivity and competence of the three participants. If a husband and wife are committed to acting in good faith, dealing openly, respectfully and reasonably with each other, and if they retain and work with a competent and concerned mediator, the result should be positive.

In summary, if the necessary ingredients are present, mediation is a far better way to deal with terminating a marriage than is the old way of doing it.

For more information about Divorce Mediation, go to the web site for the Connecticut Council for Divorce Mediation and Alternate Dispute Resolution by clicking on www.ctmediators.org.




Lisa J. Cappalli, Esq., LLC  •  Family Law & Mediation  •  attorney@lcappalli-familylaw.com
325 Highland Ave., Cheshire, CT 06410  •  Phone 203-271-3888

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