Wife says to her husband, “I have good news and bad news. The good news is that the airbags on the new BMW work great!”
This “good-news-bad news” line opens many great jokes. In the mediation world, there is also good news and bad news—leading to less humorous
The good news is that more people know about and seek to use mediation for their disputes. The bad news is that much of what people “know” is either misunderstood or untrue. These myths lead to confusion and disappointment.
Properly understood, mediation hugely benefits people in divorce. Mediation helps each person cooperatively resolve issues and create a hopeful future. To help people take full advantage of the process, consider these myths:
Myth 1—We have an agreement. . .we just need you to write it.
Many seek mediation because they agree on major issues. And, they want to avoid court. A couple’s agreement does offer a great foundation from which mediators can build. But, mediators can’t simply “write up” whatever couples state.
This would be akin to a patient saying to their doctor, “I know I need my appendix out. I don’t need any blood work. I don’t need you to examine me. I don’t need any information about the risks of the surgery. Just go in and remove my appendix.”
Just as doctors need to fully understand what is happening in a patient’s body to accurately treat medical conditions, mediators need to fully understand a client’s legal and financial situation to accurately treat a legal situation.
Clients are keenly aware of certain issues in divorce. But, they are often unaware of others. And, they don’t know what they don’t know.
Neither do mediators. Mediators must thoroughly gather information to address all significant issues.
More, mediators use this information to walk through various alternatives with clients. Mediators share the pros and cons of proposals. This makes clients fully aware of the long-term legal effects of their choices. Sometimes mediators offer options clients didn’t even know they had. Full disclosure to the mediator opens the door for clients to make the best choices possible.
While client choices drive mediation, mediators must ensure full awareness before clients choose. This protects the clients.
Myth 2—We don’t need financial disclosure.
“We know exactly how to divide the property. . .we don’t want or need to go to all the work of getting you these financial documents.” When clients say this, mediators groan.
To be fair—financial discussions are hard. First, we are taught to never discuss money. So, talking about money feels awkward.
More, money represents values, priorities, and power. Couples in conflict often don’t want to dive into these conversations. And, they resent the mediator forcing the issue.
Finally, divorcing people feel vulnerable. They want to protect their money.
Yet, disclosure proves critical, as one wife recently discovered.
The wife angrily pounced on a mediator when told the mediator wouldn’t write the agreement without financial documentation. The couple reluctantly complied. The financial documents revealed husband had a retirement account of over $500,000. Prior to coming to mediation, Husband had asked if they could “just keep the retirement accounts in their own names.” Wife agreed. She had no idea Husband would be keeing $500,000 while she kept $30,000.
Just as with Myth 1–both people must fully understand all that is in the marital pot so they can fully understand their choices. So, mediators must gather financial information and documentation to prove the information is correct. This is why ethical mediators offer a complete process.
If couples have covered everything, that will be quickly apparent. Agreements are easily drafted.
If there are gaps, couples will be glad they supplied information. They avoid leaving money on the table or incurring unexpected liability. Disclosure benefits all involved.
Myth 3—We’re divorced when we file the Petition.
Couples frequently find the divorce process confusing. “Am I divorced when I file the Petition for Dissolution? Am I divorced when we sign the Settlement Agreement? When IS everything final?”
Because there are so many steps, the confusion is understandable. In Indiana, the divorce process is:
- Filing the “Verified Petition for Dissolution” begins the process—starting the “60-day clock.” A minimum of 60 days (the 60-day clock) must pass before a judge can grant a divorce. People can (and often) take longer, but they can’t get divorced in less than 60 days.
- During this time, couples address division of assets and liabilities, what to do with the marital residence, how to value business interests, tax implications, parenting plans, and any other factors related to their divorce. Couples in Conciliation-Mediation often come to agreement on all these issues during the 60 days. Couples in litigation generally take anywhere from 12 – 24 months to finalize the divorce.
- All agreements are put either into a Settlement Agreement (if the couple reaches an agreement out of court) or an order (if issues are decided by a judge).
- Once issues are decided, the judge enters a “Decree of Dissolution.” This Decree makes the divorce final.
Myth 4—Our divorce is final in June, so we will file joint taxes for the first half of the year.
People cannot file joint tax returns for only part of a year. Thus, even if a couple is divorced on December 31st of a year, they are considered divorced for the entire year. They must file separate tax returns for the year.
Since many would pay lower taxes by filing jointly, some couples choose to delay the filing of their Settlement Agreement until after the first of the next year. This is particularly true for those divorcing later in the year. They can file jointly one last time.
For others, filing separately makes more sense.
Mediators help clients address tax implications and timing of the divorce.
Myth 5—Without attorneys, I get to impose my will.
Many parties mediate without attorneys. Some genuinely want to avoid being adversarial. They generally know how they want to divide property, parent children, and transition to post-divorce life. They use mediation to ensure they are thorough and that the agreement is sound. This is the perfect couple for mediation without attorneys.
Others avoid attorneys hoping they can bully their spouse into decisions. Mediation cannot and should not allow this.
If a mediator detects one party is trying to coerce the other, the mediator must address the issue.
The mediator may first work with the “coerced party” to adapt the process. They discuss ways to ensure that person can come to voluntary decisions in the mediation sessions.
If such adaptations aren’t enough, the mediator will connect the parties with attorneys who can advise and protect during the negotiations or will terminate the mediation.
Myth 6—Mediation will fix the issues with my spouse.
The same behaviors that cause a couple to divorce often show up in mediation.
The same spouse who can’t control spending in marriage likely can’t control spending during divorce. The same spouse who wouldn’t make decisions in marriage likely will struggle in divorce. The spouse who parented differently in marriage will likely parent differently in divorce.
While mediation can help couples come to agreement about specific decisions, it can’t always change the dynamics between the spouses. Mediation helps by establishing agreement on how to move into independent lives while setting expectations for ongoing interactions (i.e. parenting).
Myth 7—Mediation will be short and cheap.
Because mediation is designed to help couples work cooperatively, it generally takes less time and costs less. However, that doesn’t mean short and cheap.
Divorce falls into categories like spending money on plumbing or car repairs. No one budgets for those or likes spending money on them.
Yet, marriage turns individuals into legally, financially, and parenting conjoined twins. So, divorce must thoroughly and delicately separate them. This takes time and expertise.
Mediators work to balance being thorough with being affordable—and largely succeed. But, don’t expect a discount divorce.
Expect to invest in professional skill to help couples work together through a complex process to achieve well-grounded decisions that protect each person in their independent futures.
“Sometimes a heavy dose of truth, a pure injection of reality, is what we need, the kind of medicine that liberates the soul.” Matthew Kincaid
If you are considering divorce and would like more information about how mediation can serve you, please call 317-344-9740 or email info@TheResolutionCenterIndy.com. We would be happy to answer questions and help you understand your options.
The above information is for informtion only and not intended as advice. For guidance on your situation, please consult a professional.