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What Occurs at a Divorce Mediation Session and How Long Does Divorce Mediation Take?
In the first mediation session with Nancy Caplan, Esquire of Maryland Divorce Mediation and Legal Services, Nancy Caplan will review the Orientation and Fee Agreement to Participate in Mediation (“the Participation and Fee Agreement”) and the mediation participants will have an opportunity to ask all questions. The parties have already received this document when they scheduled the appointment so they can be prepared with any questions they may have. After that review and agreement to continue in the process, the parties and the mediator will sign the Participation & Fee Agreement to begin the process. At this session, the parties often inquire about the overview of the entire process of obtaining a divorce, including what occurs after the parties have completed negotiations and have signed a binding Marital Settlement Agreement.
The mediator will then ask the parties preliminary information and conduct an initial intake to gather the basics data about the parties’ specific situation. The intake assists the mediator to learn about and observe the state of the parties’ communications at that time to assess the areas of conflict or of non-conflict. At the intake the parties will tell the mediator about their educational, vocational and financial status. The parties will give the mediator information about their children as well as information about how the parties have handled matters since the decision to become separated. An agenda may be established. The mediator listens carefully to the priorities of the parties to determine what topics should be addressed first. If neither party has a specific agenda then Nancy Caplan takes the parties through a typical agenda which generally follows an outline of topics as they will appear in the drafted Settlement Agreement. Each topic is explained in general before specifics are negotiated.
Sessions typically last from 90 minutes to 3 hours. If parties come from far distances, the parties and the mediator may have scheduled an extended session to reduce the number of sessions. At evening appointments, the sessions usually end by 9:00 p.m. The parties determine when to end a session. Sometimes the mediator will end a session after a topic is successfully concluded so that parties leave on an optimistic note.
At the conclusion of each mediation session, the mediator and the parties determine the necessary preparation for the following session. If the negotiations have been concluded the parties and the mediator shall discuss how a formal the Marital Settlement Agreement will be completed and other post-mediation topics are discussed. The parties will be asked to sign another document confirming reminding them of the requirement of independent attorney review of the draft Settlement Agreement. No draft Agreement is released to the attorneys until they have both identified their respective reviewing attorneys. The draft Agreement is not binding in any way until after attorney review, revisions may be made and the parties sign the final formatted Settlement Agreement before a notary public. The parties may separately sign with each of their attorneys, or the parties may jointly go to a notary together and sign the document together. Once signed, the Settlement Agreement is a legally binding contract. When the parties get divorced, the Agreement becomes part of the Court’s divorce decree.
People commonly ask the mediator how long a “typical” case takes to mediate to its conclusion and what it will cost to have the agreement drafted by the mediator and reviewed by the parties’ reviewing attorneys. Matters involving children usually take more time to mediate than matter without children. Matters having substantial financial complexity usually take longer than cases where there are few assets. Matters involving alimony take longer than matters where there is no alimony issue. Matters where the parties have communicated and formed preliminary future plans often move faster than matters where the parties have not communicated at all prior to the mediation about settlement. Matters where there is high conflict also tend to require more time, no matter the topic.
A typical mediation averages 2-8 hours of mediation (usually in 2-4 separate sessions), and drafting of the Marital Settlement Agreement also fall within that the range. Therefore parties should expect to pay for 4-16 hours for the mediator; every matter is different. Attorney review of the Agreement also varies, simple Agreements may only require an hour of review, more complex matters may require consultation between sessions as well as the review of the Agreement. For many cases, however, even with an attorney review of the Agreement for each party, mediation with attorney review of the Agreement may cost less than the two retainers paid in adversarial negotiations. It is important to remember that a retainer is only a deposit and is not an estimate of how long the case will take.
However, many couples with far fewer issues (no children or grown children, no alimony issues, or cases with few assets) may complete mediation in a single session and naturally may have very brief Marital Settlement Agreements. Since Maryland now offers a grounds for divorce based on the uncontested grounds of “mutual consent” qualifying couples often seek out a mediator to memorialize agreements they have made for themselves outside of mediation and these cases are substantially shorter in every way.
Other costs, for services outside of mediation may also be incurred. This includes but is not limited to appraisals of real estate, business interests or present-value of pensions; the costs to draft the orders relating to division of retirement assets; the costs of attorney reviews of the draft Agreement and the filing fees and other court costs to obtain the divorce itself. In mediation, the goal is to reach agreement on the issues, but the agreement itself does not cause the parties to be divorced. A drafted, reviewed, signed, dated and notarized Agreement means a trial is no longer necessary, however the parties are not actually divorced.
