What is Collaborative Divorce Planning or Mediation?
In terms of time and fees, usually, but not always, COLLABORATIVE DIVORCE PLANNING or MEDIATION is the least expensive dispute resolution option available to parties who are not in a high conflict relationship. The level of conflict between the parties is an important factor regarding the probable success of planning or mediation. The lower the level of conflict the greater the prospects are for the parties reaching a solution. Also, as in Collaborative Family Law, cases involving domestic violence, child abuse or severe personality disorders are not very good candidates for success in planning or mediation settings.
Collaborative Divorce Planners or Mediators always function as neutrals who do not give personal legal advice to either spouse, and do not draft any legally enforceable documents or court pleadings for the parties. The first step in Collaborative Divorce Planning is for the Neutral Planner to help the spouses work through the checklists of subjects and issues they ultimately will need to resolve and include in a complete Separation Agreement, and a Shared Parenting Plan, if any minor child is involved, which must be attached to any final Petition for Dissolution of Marriage they plan to file in a court. The only document the Neutral will draft for the parties is a Memorandum of Understanding that recites in simple language all of the terms upon which the parties have agreed. If the parties encounter difficulty or impasse in reaching mutual agreement on any subject, upon the request of the parties, the Neutral can assist them by using the special skills he has learned in training as a Mediator.
The Uniform Mediation Act in Ohio (Section 2710.01(A), Ohio Revised Code) includes the following definition: “Mediation means any process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” There are various styles or approaches used by mediators, including facilitative, transformative and evaluative mediation, and some mediators may use all three styles at various times, depending on the circumstances of the parties. In other words, a mediator does not make any decisions for the parties, and functions basically as a facilitator of communication to guide the parties through a checklist of the subjects upon which the parties must discuss and agree for the final solution that is mutually acceptable to both parties. Also, the mediator does not make any decisions for the parties, and the terms upon which the parties ultimately agree are not binding or enforceable until they are approved by a judge as an order of the court.
The Ohio Uniform Mediation Act provides a PRIVILEGE of confidentiality for all communication and acts among the parties, Mediator and any other persons involved in the process, and nothing anyone says or does during mediation meetings can be used as evidence in a later divorce trial, if the parties fail to settle all necessary issues, and judicial intervention becomes necessary to complete the case.
Mediation of divorce cases and parenting disputes is authorized in Rule 16, Ohio Rules of Superintendence, and, through the supervision and assistance of the Ohio Supreme Court, many county Common Pleas courts have established active programs to provide free mediation services to assist parents in resolving disputes over parenting plans and child support. but not for disputes over divorce financial issues. Some of the court supervised programs provide mediation services through mediators who are employees of the county common pleas court, or in private practice. In order to become a “Court Approved Mediator” an individual must meet certain criteria established by the local court, including the completion of approved training courses of 12 hours in basic mediation skills, 40 hours in divorce mediation techniques, and additional special training in domestic violence. However, there is no requirement that a mediator must be an attorney or have a legal education, and attorneys for the parties rarely attend mediation sessions, although the Uniform Mediation Act allows them to do so. Nevertheless, experience has shown that mediation in divorce or parenting cases with parties who have access to their own attorneys for education and advice usually are more successful than those in which the parties do not consult attorneys.
Ultimately, each spouse will have the opportunity to take their Memorandum of Understanding to an attorney of his/her choice for personal legal advice and help in converting the Memorandum of Understanding into acceptable form as their Petition for Dissolution of Marriage, with Separation Agreement (and Shared Parenting Plan) attached, before the formal documents are signed by the parties and become binding upon them.
I have completed all of the necessary training requirements and have qualified for designation as a "Court Approved Mediator" in private practice. In addition, for six years I was a member of the Senior Faculty at Conflict Management Services in Columbus, and assisted the Director in teaching the training courses in Divorce Mediation and Mediating Divorce Finances.