The Children’s Bill of Rights

Many of the couples I see in my divorce mediation practice have children. Not surprisingly, I find that some parents are more able than others to keep their conflict separate from their relationship with the children. Understandably, this is no small feat, given all of the emotions, anxieties and fears that can arise during this challenging transition from married to separated/divorced.

One of my goals throughout the mediation process is to help parents understand that the way they move through their conflict may affect their children’s lives – even years after a divorce is finalized. The results can be very damaging if one or both of the parents is very bitter or angry and continues to be so post-divorce.

I check in with my couples during each session to see how they’re doing generally – and also to ask how their kids are doing. Then, of course, when we’re discussing the specifics of the parenting arrangements and custody, I help them address the issues that come up based upon what’s best for their children.

One thing I’ve found very helpful in focusing parents on “the best interests of their children” is to give them a copy of the Children’s Bill of Rights*. The 12 points of this document provide a guide for the behavior of the parents with respect to their kids.

And, if the children are old enough to comprehend it, I suggest that it be shared with the kids as well. The list can become a vehicle for older children to more easily initiate a dialogue with their parents, allowing them to express their feelings and ask questions.

The points are presented from the perspective of the children, as the “rights” they are afforded. Here they are:

1. The right not to be asked to choose sides between their parents.
2. The right not to be told the details of the legal proceedings going on between their parents.
3. The right not to be told “bad things” about the other parent’s personality or character.
4. The right to privacy when talking to either parent on the telephone.
5. The right not to be cross-examined by one parent after spending time with the other parent.
6. The right not to be asked to be a messenger from one parent to the other.
7. The right not to be asked by one parent to tell the other parent untruths.
8. The right not to be used as a confidant regarding adult matters.
9. The right to express feelings, whatever those feelings may be.
10. The right to choose not to express certain feelings.
11. The right to be protected from parental “warfare.”
12. The right not to be made to feel guilty for loving both parents.

The practical effects of divorce can be difficult to work through and accept. By adhering to the Children’s Bill of Rights, parents can give their children the opportunity to move forward in the best way possible.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

*Source: NY State Unified Court System, Tompkins County Courts, and NY State Parent Education & Awareness Program

After Your Divorce: You’re Not Done Until You Do These Things

What many people don’t realize is that, even though your divorce judgment says who gets what after your divorce, the judgment alone doesn’t automatically divide everything up. You have to do that yourself!

Unless you’ve been through a divorce before, it’s not instantly obvious what you’re supposed to do after your divorce is done to make sure everything is separated properly.  The judge doesn’t give you a checklist along with your divorce judgment and tell you, “Make sure you do these things … now!”

What makes things even more complicated is that there isn’t just one place you can go and take care of all of the picky details involved in separating your life from your ex’s life. You have to tromp around to multiple offices, visit multiple websites, and fill out mountains of forms in order to divide your finances, change your name, and do whatever else it takes to re-establish yourself as a separate entity.

To make things a little easier, here is a list put together by Terry Gaspard of some of the most important things you are going to need to do after your divorce is done, to make sure you can move into your new life with confidence.

1. Go through your divorce judgment and put deadlines in your calendar for any important dates now!
2. Secure your own health insurance (or remove your spouse from your health insurance policy).
3. Separate all of your bank and investment accounts.
4. Close all joint credit cards and remove your spouse’s name as an authorized user from all of your credit cards.
5. Make sure that any money that is supposed to be transferred from a retirement account actually gets transferred.
6. Refinance the mortgage on the marital home, and get a quitclaim deed to re-title your property.
7. Re-title your automobile(s) to be in separate names.
8. Change the beneficiary designations on your life insurance, 401(k)s, and any other financial instrument that has a designated beneficiary.
9. Make a new will.
10. Make sure you and your spouse are both listed as contacts with your kids’ schools and any activity they are enrolled in.
11. Set up a joint calendar with your spouse to keep track of their activities.
12. If you haven’t already done so, change all of your passwords.

BONUS TIP: If you are changing your name, get a certified copy of your divorce judgment immediately! You will need it.  Also, remember to change your name everywhere! That includes on your driver’s license, your social security card, all of your credit cards, all of your bank and investment accounts, and everywhere else your name is listed. (Yes. It’s a process!)

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

Fewer Violations of Mediated Divorce Agreements

In my work with divorcing couples, I have often observed that divorce agreements that result from the mediation process are less likely to be violated than agreements reached through litigation. The discrepancy appears to result from the cooperative nature of divorce mediation, which encourages separating spouses to come up with their own creative solutions for disputes stemming from their divorce. This personal investment seems to make mediation participants more likely to adhere to an agreement that they themselves crafted.

In contrast, former spouses who entered divorce agreements after protracted litigation often view their agreement as the product of pressure or unfairness, resulting in more post-divorce violations of litigated agreements.

Divorce Mediation Lets Spouses Craft Their Own Agreement

A central pillar of divorce mediation is that it allows spouses to flexibly and creatively fashion their own solutions to the unique problems posed by their separation. Mediation facilitates discussion so that spouses can identify and work towards common goals while avoiding confrontational and unproductive modes of communication. In general, divorce agreements that arise out of the mediation process are more closely aligned to the future needs and interests of the spouses who create them compared to agreements reached through litigation, which can be the product of leverage, pressure or coercion.

Lawyers and the adversarial nature of the litigation process isolate spouses from each other, preventing dialogue as each side fortifies their territory and digs in for a fight. Of course, most wars are finally resolved through diplomacy, and the same is true for divorce litigation. In the end, most litigated cases settle. However, the question remains: which peace is more likely to hold? A treaty negotiated under coercive pressure, or one reached through mutual agreement, based on mutually advantageous terms, before a shot is ever fired?

Separating spouses in divorce mediation retain full control over choosing their goals and how to pursue them. This allows mediating spouses focus on what matters the most to them, instead of focusing on the cycle of dominance, submission and entitlement. In the end, divorce agreements that comes after mediation tend to represent both spouses’ goals, rather than a negotiated surrender at the expense of one or the other. In short, mediation generates mutually beneficial agreements that are less likely to be violated by a spouse who feels he or she was treated negatively or unfairly.

Where both spouses participate in the crafting of their own divorce settlement in mediation, each spouse feels a sense of ownership over the agreement’s terms. Even when certain terms favor the other spouse, mediation participants tend to recognize that other terms within an agreement counter-balance other terms in their favor. Mediation empowers spouses, which often leaders to a deeper understanding of the negotiation process, the compromises made by each side, and the fairness of the overall agreement.  When an agreement is negotiated by attorneys in a tense blur of stress and fatigue, former spouses tend to experience anxiety when reviewing their agreement instead of understanding.

In the end, the personal investment made by each spouse in mediation instills a sense of attachment and pride in the final agreement. Both spouses feel equally in control of the process, and consequently feel in control of their future. Obviously, mediated agreements are not immune to violations. In general, however, violating the terms of a mediated agreement feels enough like self-betrayal that most former spouses strive to follow the agreed upon terms.

What Should You Ask Your Mediator at the Initial Session?

At my initial free consultations, I usually start by giving potential clients an overview of the mediation process, a little bit of background about me, and my philosophy about mediation. At some point I will turn to the clients and ask if they have any questions.  I am often surprised that prospective clients have no questions.  It could be that I have done such a comprehensive and fantastic job explaining the process that they truly feel they have all the information they need but I don’t really think that is it. Maybe they have already done all the research they need. Sometimes I think that the process is so overwhelming that clients may simply be distracted and not know what to ask.  For most people it is their first time divorcing and they do not know where to start.  Finally, sometimes clients have been referred by people, they are not shopping around and have come in to the initial session knowing that they plan to hire me. Sometimes, in those situation, clients save their questions for after we officially get started.

What I offer below is some thoughts and ideas of questions that may be helpful to ask at your initial consultation with your mediator.  A free initial consultation is an opportunity to get to know your potential mediator and make sure that you are making the right decision.  This person is going to help guide you in making some of the most important decisions of you life.  Due diligence is not just important, it is critical.

1. First, hopefully you will have determined before the first session if the initial consultation is free. In short, some mediators charge for the initial session and some don’t.  I do not charge for an initial session. I see it as an opportunity for the clients to make sure they feel comfortable with me as the mediator and for me to make sure that the case is appropriate for mediation.

2.  There are a number of questions which are important to ask but which will inevitably fall into the “it depends” category.  a.)  How long will it take?  This question has two parts. First is, how long will the mediation itself take and second is how long will the divorce action take?  b.) Related to the first question is how much will it cost?  How long the process lasts and how much it costs are the two most common questions.  Obviously, every family's situation is different and impacts these questions - are there children involved, what assets and liabilities does the family hold, what is the level of cooperation or animosity between the parties.

3.  Do you meet at regular intervals, (say for instance every two weeks) or is the scheduling based on the individual needs and schedules of the clients? Mediators have different approaches to this issue. Some will meet at prescribed intervals and some will leave it to the clients to determine the pace.  I have found it best to let the clients work at their best pace and will never impose my own schedule.

4.  Does the mediator take a retainer or do clients pay as they go?  This is a very important question that may have an impact on whether you choose a particular mediator.  I find that many clients that I deal with are struggling financially.  Many clients come into mediation already in debt and now having two households is another additional burden.  I have clients for whom the pace of the mediation (i.e.- how often we meet) depends on whether they have the money to pay for the session.  One of the advantages of mediation over litigation is that it is almost always cheaper.  If clients have to come up with a $2,500.00 or $5,000.00 retainer at the beginning of the mediation, they simply may not have the ability to come up with that much up front.  I, for instance, ask clients to pay at the end of every session. I find that having clients pay as they go makes it affordable for clients and keeps them in control of the cost.

5.  Will the mediator draft the Separation Agreement and court papers?  I will draft all court papers and have and attorney I work with draft the final Separation Agreement.

6.  Will the mediator go to court with the parties? I do not go to court with my clients but see it as my job to make sure that when they go to court, they are prepared and everything goes smoothly.  That includes having a final meeting where I walk through the process they can expect in court and walk through all the court papers, agreement and financial statements. I believe most mediators do not go to court with their clients but it is a question that is worth asking.

7.  Will the mediator tell the parties what is a fair agreement? Another way to ask this question is “What is the role of the mediator?”  This is a critical question that goes to the heart of the approach that the mediator will take.  There are some mediators who see themselves as more directive and some mediators consider themselves facilitative.  A directive mediator will give you his or her opinion on what is fair or what a court might do. A mediator who is a facilitative mediator will help the parties reach an agreement, discuss the issues, explore options but will not tell the parties what he or she thinks the parties should do.  I spend a fair amount of time discussing this with clients.  I am a facilitative mediator. I will not tell clients what I think is fair because ultimately my goal is for them to reach an agreement based on what they think is fair- not what I think is fair. My conception of fair is based on my world views and biases.  My goal is to make sure they have all the information they need to make an informed decision.

8.  The corollary to the above question is will the mediator tell the parties if he thinks the agreement is not fair?  This is a complex question.  In addition to my goal of making sure they have all the information they need to make an informed decision, I want to make sure that when they go to court, things will go smoothly and the judge will approve their agreement.  If I think they are agreeing to something which may lead to a problem with the judge approving the agreement, I will discuss it with the clients. How did they arrive at the decision? Do they understand it? Do they believe it is fair?  I don’t see it as my job to change their minds but I do see it as my job to make sure they are not under some misunderstanding of the law or facts and I want to make sure that their rationale is sound.

9.  Other than court papers, will the parties need anything else that would require drafting or lawyers and how much will that cost?  The answer to this depends on the individual situation. There may need to be deeds drafted, Qualified Domestic Relations Orders drafted and there will be a cost for these.

10.  Are there any downsides to using mediation?  There are always pros and cons to every decision you make. Talk to your mediator about what he or she thinks are the pros and cons of the mediation process. 

11.  Should I have my own lawyer?  I always encourage clients to speak to their own lawyer. This is important to talk to the mediator about. Talk with your mediator about the role/or non-role of lawyers in the process.

The questions which you should be asking yourself are:

1. Do I feel comfortable with this mediator?

2. Do I feel like this mediator has integrity?

3.  Do I feel like this mediator will be fair and balanced and maintain integrity in the process?

4.  Based on what I have heard, do I have any concerns about the mediation process in general?

Ultimately, both parties to the divorce action need to be comfortable with the mediator. Sometimes one is comfortable and the other is not.  You should feel comfortable that the mediator is skilled, knowledgeable, competent, experienced and has the temperament that works for you. While it may be tempting to base the decision on whether you feel like you can influence the mediator to take your side or like you more or believe in you more, the real test should be, do you feel this mediator is knowledgeable, experienced, skilled, able to maintain neutrality, professionalism and does he or she provide a safe space to discuss sometimes difficult issues?

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.