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MEDIATION AND THE LEGAL PROCESS OF DIVORCE
| FORMAL LEGAL PROCESS | TRADITIONALAPPROACH | MEDIATIONAPPROACH |
| 1. PLEADINGS | ||
| · Petition filed by one party | Allegations of "fault" | (Filing of Pleadings done by consent of both parties after/before or during the mediation process.) |
| · "Service" must be obtained on other party for court jurisdiction | Formal service by sheriff of "respondent" party at home or at work | Marriage "irretrievably broken" |
| · Answer filed | Party gives spouse petition- formal service is "held" pending "entry of appearance" by spouse or their attorney | |
| 2. ISSUES | ||
| (1) Immediate Issues:(2) Personal Property:cars, accounts(3) Real Property:(4) Business Interests:(5) Retirement Assets:(6) Parenting Responsibilities:(7) Financial Responsibilities:(8) Tax Planning(9) Professional Fees: Attorneys | Court determines/Attorneys negotiateInterim orders: PDL, Restraining orders"Marital vs. Non-marital" property"Custody - joint/sole"Child support/maintenance,health insurance, etc. | Parties decideParties may agree to make interim understandings a formal court orderEquitable distribution of assetsParenting responsibilities - time/decisionsAllocation of financial responsibilities |
| 3. FACT INVESTIGATION | ||
| Formal discovery | Rule of no legal proceedings(no formal discovery while parties are in mediation) | |
| · Motions to produce | Rule of Full Disclosure: Gathering, Evaluation and Corroboration of Data | |
| 3. FACT INVESTIGATION (continued) | ||
| · Interrogatories - written questions answered under oath· Depositions - formal questioning of party/witness by opposing attorney | · Inventory and analyze data and information· Review tax returns, profit and loss statements, pension plans and other financial information to corroborate and cross-check data· Agree on process for appraisals and valuations | |
| 4. COURT APPEARANCES | ||
| (Required in most states) | · Settlement conference: attorneys meet with judge | (Agreement mediated by parties; reviewed by attorneys) |
| · Attorneys negotiate agreement on behalf of clients | ||
| · Trial (1 day to 3 weeks) | Non-contested hearing (.5 hour) | |
| Brief testimony by both parties; presentation to court of Property Settlement Agreement and Parenting Plan. Court must find that agreement is "not uncon-scionable." Most agreements are approved. | ||
| ENFORCEABILITY | Decree of Dissolution/Order of Modification as negotiated by attorneys or determined by courtEnforceable court order; parties not comply if they feel coerced into settlement | Decree of Dissolution/Order of Modification in conformity with parties agreements/under-standingsEnforceable as any court order or contractual legal agreement; parties' compliance is much higher |
| TIME FRAME | 6-18 monthsdependent on court timetable | 3-6 monthsdependent on parties' timetable |
| 5. POST DIVORCE | ||
| Appeal | No Appeal | |
| Modification action"Custody"/"child support or maintenance" | Parties review and modify agreement as necessary or circumstances require | |
| Increased likelihood of return to court | Parties less likely to return to court | |