Mediation Services

It starts with reaching out and interviewing mediators. Usually 1 party will call and the other may or may not go along with the suggestion, but we need to get started. The mediator may offer to speak to the other party prior to the mediation, but either way… not a deal breaker. At Burgeon, we encourage speaking to both parties prior to mediation. We are impartial parties.

• During this call the mediator will try to learn the following:
  • How the prospect received their name.
  • The names of the parties and their attorneys.
  • Where the parties are in the divorce process with their attorneys.
  • Whether there are any domestic violence issues that would preclude the couple from mediating.(although there are some instances where this can happen, depends on case- but generally it is not allowed).
  • The length of the marriage and the ages of the children, if any.
• The Mediator should provide:
  • information regarding their background
  • an overview of the divorce mediation process,
  • summary of the fee structure.
  • the mediator's role is to help the couple explore options, and bring knowledge and experience that provides a context for decision-making, but that ultimate decision-making authority in the process rests with the parties.
  • discuss the role of attorneys in the mediation process. Specifically, that although attorneys generally do not participate in the mediation sessions, the two spouses are encouraged to consult with their separate attorneys throughout the process.
  • They may also use the services of attorneys to prepare their separation or divorce agreement, based on the decisions outlined in the non-binding Memorandum of Understanding prepared in mediation.

First Session

The first session serves as an introduction and overview of the mediation process. The agenda for the first session will usually encompass the following:

• Description of mediation,
• the mediator's role,
• number of anticipated sessions and fees.
• Parties' objectives for today and for the mediation process.
• Review of the mediation agreement including fee arrangements.
• Legal information including the grounds for filing for divorce/separation.
• Description of issues to be addressed in the mediation process.
• Develop list of documents for clients to bring in for the next session.

Keep in mind, it’s normal to be nervous through the whole process and especially during the first session. However this can be an eye opening session for both parties. Be an active listener to what your spouse is sharing as well as sharing your concerns and motivations. Remember you are under no pressure to make any decisions until you’re comfortable.

• It is common for couples to share :
  • they don't want to spend money unnecessarily,
  • don't want to go through lengthy court battles,
  • want things private,
  • and really want to remain amicable as much as possible for the sake of the kids.

The mediator will provide a list of documents needed for the next session. If either party has a defined benefit pension plan, the mediator will provide forms so that they can request a valuation of the pension. If there is a business or professional practice, the mediator will suggest that the parties need a business valuation by a neutral business appraiser, and may provide a list of professionals.

• Other documents that are usually requested include:
  • The children's school schedules with holidays.
  • Pay stubs
  • .Last three years' federal tax returns.
  • Last three years' W-2 Forms for each party.
  • Copies of all bank, brokerage, and 401(k)/403(b) statements.
  • Most recent mortgage statement showing outstanding loan balances
  • A summary of all insurance policies and coverage.
  • A market assessment of real estate if property values are in dispute.
  • A list of household items to be divided, if the parties cannot agree among themselves how to divide these items.
  • A credit report for each party (e.g. Equifax 800-685-1111)

It usually takes at least two weeks for the parties to gather their documents, with the exception of business appraisals that can be very time consuming and get a market assessment on the house. This time is also a good thing as it allows each person a little time to process what occurred in the first session, the separation and divorce. This is why it’s good to give yourselves one to two weeks between scheduling sessions.

• Copies of Documents You Might Need to Provide to the Mediator in Your 2nd Session
  • Children's school schedules
  • Three consecutive paystubs
  • Last three years' personal federal tax returns, including first two pages of the return and schedules A, B, C, D & E
  • Last three years' W-2 Forms
  • Last three years' business federal tax returns, if applicable
  • Trust account statements
  • Most recent bank, brokerage, IRA and 401(k)/403(b) statements
  • Other pension statements
  • Statement of company benefits, if available
  • Statements for employee stock option programs, restricted stock units, deferred income programs, and other employee financial benefits
  • Comparative market analysis (CMA) and/or appraisal of real estate
  • Most recent mortgage statement) showing outstanding mortgage balance and monthly payment
  • A summary of all insurance policies and coverage or your Certificate of Insurance
  • How much the child/children’s health/dental/vision insurance costs -usually the difference between parent and child and single coverage
  • A list of household items to be divided (if the parties cannot agree)
  • Private party "Blue Book" value of your automobile(s) - go to www.kbb.com
  • Car loan balance statement(s)
  • A credit report for each party - www.annualcreditreport.com please run the report for only one agency. I am not interested in your credit score, just the list of outstanding debts
  • Optional: Social Security Statement for each party - http://www.socialsecurity.gov/ mystatement/
  • Optional: Marriage certificate

Second Session

The focus of this session is on developing the parenting plan and on data collection.

The agenda will usually encompass the following:

• Sign the mediation/fee agreement.
• Develop the parenting plan and address related issues.
• Meet with each party alone.Collect requested documentation.
• Provide budget worksheets for completion by the next session.

It’s often required that parents in divorce proceeding file parenting plans, with the hope that the parties will be encouraged to fulfill their parenting responsibilities through their agreements rather than rely on judiciary intervention.

The parenting plan typically encompasses non-financial parenting issues, including:

• A specific schedule for parenting time for each party including weeknights, weekends, vacations, religious holidays, school vacations, birthdays, and special occasions, and including procedures for transferring the child.
• Access to various records including educational and medical records.
• Provisions or restrictions on domestic or international travel.
• The impact if there is a contemplated change of residence by a parent and
• Participation in making decisions regarding the child included decisions about religious upbringing, health care and education. In some states, child support is based on a number of factors including the number of overnights each parent has with the child/children.

In starting with developing the parenting plan, it enables the mediator to help clients structure the financial settlement. Mediators have different styles and opinions on break out sessions to meet with each party individually. As parenting time can be very emotional, some mediators feel it best to meet with each individually and then come back to meet with both. Either way the mediator should give you a heads up and address this so it’s what works best for you and your partner. Most people prefer the time individually as they can freely discuss how they feel without worrying about what the other party will say. Don’t be afraid to suggest what you feel would work best in your case.

Some homework for the 3rd session may include

• budget work sheets for each person to complete. Be as thorough and realistic as possible to include anticipated expenses as well. It’s in your best interest to identify expenses going forward so you can identify how things can be afforded or may need to be scaled back or eliminated.

Third Session

In the third session, many people start to “relax” a bit. It’s understood it’s still difficult, but there’s an understanding of what to expect in each session, there’s a plan and everyone is working towards the goal of coming to agreement on the open items.

The focus of this session may be reviewing the following:

• Review child support based on child support guidelines.
• Discuss other financial issues related to the children such as:
  • Work-related childcare.
  • Child's share of health insurance premiums.
  • Out-of-pocket health care expenses of the child such as for
    • orthodontia.
    • SAT preparation classes
    • fees for summer camps or karate lessons.
    • Frequency and/or events that should trigger a child support modification.
    • Age of emancipation for the children as related to the child support obligation.
    • Any religious rights of passage and how they will be funded such as Bar Mitzvahs.
    • The parties' desires regarding the child's college education and costs.
• Review inventory of assets and liabilities.
  • Decide how to divide assets and liabilities.
• Collect budgeting information.

Each state has its own child support guidelines and formulas, and many of the courts will require proof that parties have been provided with information regarding what child support would be by the state's child support guidelines. Clients may choose to adjust the child support – which is something a mediator should work through with clients. Additionally, if spousal support is also possible and warranted, child support may be revised upward or downward depending on the amount of spousal support agreed to in Session Four.

Regarding additional future expenses, some couples may table these conversations for a future date, but if possible it’s best to identify a methodology for splitting expenses one example could be splitting based on a percentage based or agree to use a percentage of respective incomes at that time in the future.

The discussion of personal property, assets and liabilities can cost people a lot of money. As much as you may want to extract revenge, try not to take this as an opportunity to do so. Try your best to split the property on your own such as furniture, stereo equipment, television, computer equipment, antiques, and photographs. You can really save yourselves a lot of money by dividing these items on your own. Identify what you agree to split and the allocation. Provide that info to the mediator. If you are down to a few items or you just can’t do this on your own, provide the mediator a list of all the items that can NOT be agreed on and understand that the mediator will be using the time to review the list in session to try and guide allocation and come to agreement. The mediator may use the approach to show three columns, one showing total assets, one column each for each party which will reflect value of what will be received. It may look like this:

Total Assets and Liabilities Spouse X Spouse Y

$260,000.00 $130,000.00 $130,000.00

Description Value

Car $10,000 $10,000.00

Loan on Car $5000 $(5,000.00)

House $250,000 $250,000.00

House mortgage $125,000 $(125,000.00)

Bank Account $130,000 $130,000.00

NOTE: This is a simple illustration and does not adjust for potential taxes, sales commissions and closing costs that may or not be considered in the mediation process.

Fourth Session

This session drills further into financials and may include discussions on the following:

• Review parties current and forecasted budgets.
  
• Discuss what is needed if there are shortfalls including spousal support.
  
• Review other outstanding issues including incomes taxes, religious issues, cost of the divorce, etc...
  

Based on all the data gathered and discussed, the mediator may put together a marital budget and the projected budgets for each party after the separation and divorce. This exercise is helpful to identify that both parties will be self-sustaining and comfortable or help to identify and close shortfalls. It allows for a more rational discussion support or in the example of long term marriages permanent alimony (which is no longer usually available in NJ)

Outstanding issues usually addressed in this session include:

• Income taxes including exemptions for the children, and filing status during the separation.
  
• Religious issues such as possibly religious annulments for Catholic clients, and Gets for Jewish clients.
  
• Whether the wife plans to change her name following the divorce.
  
• Social Security issues, including the ten-year rule.
  
• How the parties plan to pay the legal costs and fees for the divorce.
  

Fifth/Last Session

This session is focused on reviewing the Draft of the Memorandum of Understanding (“MOU”) and amending or correcting it. The Draft MOU summarizes everything the parties have agreed to in the mediation process. The MOU is not intended as a legal document and will remain unsigned by the parties. It serves the purpose of putting in writing the goals, intentions and attitudes of the couple.

If needed and neither parties have secured legal counsel, most mediators will supply a list of mediation friendly attorneys, and will encourage their clients to make contact with a few attorneys so that they can inquire about fees, availability and approach. Frequently, mediators will suggest that clients also review the MOU with their accountant, tax accountant, and financial planner. The last part of this session will be spent answering questions and addressing concerns. Most clients are comfortable with the MOU, but apprehensive about moving forward. They should be assured that the hardest part of the process is done - the decision-making. Their attorneys will review the MOU, and help them implement the agreement. The mediator will assure them that if any conflicts arise during the filing process, during the divorce, or after the divorce, they are free to come back to mediation to address those issues. A revised MOU, reflecting changes made by the clients in this session is mailed to clients, shortly after this session.