Tom Crowley - Hawaii Mediator - Arbitrator - Attorney

The Eight Steps of Divorce Mediation
by Thomas E. Crowley, Esq.


What Is Mediation?

Mediation is a process in which an impartial  person helps the opposing parties make their own settlement. 

Divorce is perhaps the most personal and painful of all disputes. There's a paradoxical urge to fight and flee the conflict at every stage, with flight usually getting the nod.  Passions are the common denominator and driving force in divorce, and they're contagious. 

In divorce, our clients often feel their emotional speed-bags are being battered by fear, fury, guilt, worry, and embarrassment.  Divorce jeopardizes their most intimate and important interests, such as their family, their health, their home, their sense of security, their jobs, and their hopes and dreams for the future.  With so much at stake,  communication with their spouse about the divorce can become very painful and difficult.  They don't know how to go about facing the issues in the divorce in ways that don't increase their fear or anger.  Both sides feel that they'll be exploited or taken advantage of in the divorce.  It's in this dilemma that mediation can make an important positive difference.

Mediation provides a safe, demilitarized zone for the parties to meet, to talk things over, to exchange offers and compromises, and to reach fair and dignified agreements.  The reason mediation can be so effective lies in the "power of ritual."

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The Power of Ritual & Why It Works

When it comes to disputes, and especially divorce, most of us have just one annoying little problem: real life.  In real life, disputes take on lives of their own, often turning into new horror stories about litigation.  In most disputes, the original argument gets overwhelmed by "tales from the crypt" about the other side's conduct during the marriage and the divorce.  The first thing the parties want to complain about is "the dispute about the dispute."

The kind of life a dispute takes on is in large part determined by the procedures, or "ritual," applied to them. The ceremony, or "ritual," used to deal with a dispute can help or hurt its resolution.  A bad ritual for ending a disagreement, like a duel, can make the dispute far worse than it already is.  When the swirling tornado of emotions in a dispute combines with the powerful influence of a bad ritual, the parties can become trapped in an irrevocable commitment to fight. 

Ritual can create a metamorphosis in a dispute. Metamorphosis means "a profound change in form from one stage to the next in the life of an organism."  Just as a cocoon allows the earthbound caterpillar to change into an airborne butterfly, a good ritual of resolution can change both the reasons for the conflict and the remedies available for resolving it. 

As "the medium is the message" in communication, "the ritual of resolution is the message" in disputes.  Fortunately, a "good" ritual, like mediation, can cause a metamorphosis in the dispute which focuses the parties toward a fair and peaceful direction.  Mediation is a ritual which has the power to increase the fairness of the result, and decrease the costs in getting there.

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The Ritual of Resolution in Mediation

In mediation, the parties control both the process and the outcome.  They are the "architects" of their own solutions.  Mediation is private, voluntary, nonbinding (unless agreement is reached), informal, and consensual.  Either party at any time can terminate the mediation for any reason, or for no reason. 

The mediation begins with the parties present before the mediator.  The mediator explains the ground rules, tries to establish an atmosphere of fairness, and attempts to get the parties to agree out loud, in front of each other, that they'll make a good faith commitment to settle the

dispute through mediation.  Each party is then given equal time to explain its point of view. 

The mediator will next meet privately with each party to defuse hostility; help the parties get the information they need from each other to understand and resolve the dispute; furnish the parties with realistic and impartial feedback concerning their positions; explore alternative solutions; and act as a conduit for offers and counteroffer.

The mediator will then bring the parties back together to report whether they are making headway toward settlement, praise them for their efforts, and encourage them to keep at it.  Usually, the mediator will continue private meetings with each party to explore alternative solutions.  In the event a settlement is reached, the mediator will help the parties clarify the terms of the agreement and make arrangements to put the agreement in writing. 

Compared with litigation, mediation is fast and cheap.  The parties maintain control over the process and the outcome, and aren't stuck with the confining procedure or adversarial nature of trial.

Because each mediation is made up of living, breathing participants, each mediation is dynamic and unique, very much like a living thing.  Each mediation, to be most effective, must adjust to the idiosyncrasies of the disputants and the mediator.  While "ritual" has tremendous power to change both the participants and the dispute, to be effective the ritual must adjust to the peculiarities of each dispute and its parties.  Properly performed, the ritual does not exalt form over substance, but brings form to substance.

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The Rhythm of Settlement in Divorce Mediation

While each mediation is unique, a useful approach in divorce mediation is to establish a rhythm of settlement before the parties begin hard-core negotiating.  Otherwise the parties usually end up fighting, and being wounded instead of rescued by the mediation.  As Orson Welles might have said, in the context of divorce mediation: "We settle no case before its time."

The key to establishing the rhythm of settlement is to focus the parties first on defining the issues in the divorce; second, on sharing information about those issues; and third, on agreeing how to measure the information which is shared.  This primes the settlement pump in 4 ways:

  1. It reduces the parties' fear of being exploited or taken advantage of.  This is one of the hidden but major emotional issues in divorce: the fear of being taken.
  2. It shares control over decision-making about the dispute.  No one likes to be force-fed a solution.
  3. It provides both parties with the means to make informed decisions.  This relieves them of their anxiety that the other side may be hiding the ball.
  4. It establishes a rhythm toward agreement on the "real" issues, and away from emotional "dispute about the dispute" issues.

Once the parties have sufficient information, and know the pros and cons of the available options, they'll be ready to drink the sweet wine of agreement, instead of the bitter cup of suspicion and anger.  Therefore, whether the issues are custody, child support, spousal support, or property division, the approach will be the same:

  1. Define the issues;
  2. Share relevant information about the issue;
  3. Agree on fair criteria to apply to the information; and
  4. Negotiate a solution to the issue.    

Of course, establishing this rhythm of settlement, and then achieving agreement, takes time.  Several mediation sessions may be needed to get the job done.  Regardless of whether there's one or more sessions, a good ritual for divorce mediation will have eight stages.

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There are many moments of truth in divorce mediation, and the first -- and often most important -- happens before the formal mediation even begins: getting the parties to the table.  Overcoming the resistance to sit down at that table can be half the battle in resolving a dispute.  It's like the Steve Martin joke, "How you can be a millionaire and never pay taxes?  First, get a million dollars..."
Because getting parties to agree to mediate can itself be a daunting task, it's designated here as the "first stage" of divorce mediation.  There are many obstacles at work when we try to get the parties to the mediation table, the greatest being the passions the parties bring to the conflict, the "dispute about the dispute," the fear of loss of control over the outcome, the fear of the unknown, and, indeed, the unknown, secret reasons the parties may have for ducking mediation. 

The possible counterbalancing forces to these obstacles are the need for a way to communicate, the need for information, the looming approach of a meaningful deadline, and the need to keep expenses from going through the roof.  Each of these obstacles and forces is affected by the others, the balance changing constantly during the dispute.

Of all the reasons for avoiding mediation, the greatest are fear and procrastination.  People stuck in disputes often fear each other, and so are reluctant to meet face to face.  Their first instinct is to refuse anything the opponent proposes, even if it's as innocent-sounding as negotiation or mediation.  There's also the related (albeit unfounded) fear that they will lose control of the dispute by submitting it to mediation. Finally, there's the fear of appearing weak, of "blinking first," by suggesting settlement instead of trial.  Our clients don't want their opponent to think they don't have the facts, the law, the bucks, and, most of all, the gumption to win at trial. 

In addition to fear, procrastination also delays attempts at settlement.   Good negotiation or mediation requires preparation, and it's sometimes hard to get our clients "ready" to negotiate without an independent deadline to force them to do so.

Fortunately, now that mediation is more widely understood, in some instances the invitation to sit down and talk will be met with wary acceptance.  Before acceptance, however, there must be invitation.  The first step is to make them an offer they can’t refuse.

The Hawaii Family Court Requires Mediation

For some time now, the Hawaii Family Court has required mediation in divorce cases.  Currently, the Hawaii Family Court emphasizes mediation in three ways.  First, Family Court Memorandum 48 announces the Court’s presumption "that all divorce litigants will attempt mediation before litigation."  Second, the form for Motions for Pre- and Post-Decree Relief, provides that counsel may request an order requiring mediation on the issues raised in the Motion.  Third, the form of Pretrial Order to be used in connection with each and every Motion to Set, Settlement, or Pretrial Conference requires the attorneys to state whether mediation occurred but failed, or was inappropriate, and then to state the reason why. 

The above Hawaii Family Court Forms and Memorandum help to overcome the obstacles to mediation by providing both a rationale and a deadline to focus on mediation early in the divorce action. The parties and their attorneys can tell each other they're meeting to discuss mediation not because they want to, or because their respective positions are weak, but because they have to.

While the Family Court can help the parties get to the mediation table, explaining the ritual of mediation to the parties will reduce their fear of the unknown.  The idea is to take mediation "out of the realm of imagination and into the realm of information."  The attorney can explain that in mediation, the client gets to keep control of the dispute, it's far faster and cheaper than trial, that settlement discussions in mediation are inadmissible in trial; and that the mediator must keep his or her designated secrets confidential.  When the parties achieve resolution, however, their agreements are admissible in evidence.  HRS §572-22.

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The formal mediation hearing begins with the parties present before the mediator.  The mediator explains the ritual of mediation, and reviews the agreement to mediate. 

The mediator reminds the parties that:

  1. In mediation, an impartial person helps the opposing parties reach their own settlement.
  2. The mediation is voluntary and confidential.
  3. The mediator doesn't take sides or make decisions for the parties, but helps them communicate.  The parties keep control of the process and the outcome.

The mediator then asks the parties to make a good faith commitment to try their best to work together to come to a fair settlement. 

The parties then agree on an agenda for discussing the issues, usually starting with the issues which are easiest to solve.

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STEP 3.            TALK STORY

It's important, at the beginning of the mediation, that each party be given an equal turn to tell his or her side of the story.  It's equally important that the mediator show he or she is listening.  In The Rime of the Ancient Mariner, a wedding guest is constrained to hear the tale of an old sea-faring man.  His tale is indeed frightening: of storms, of sins against nature, of an albatross around the Mariner's neck, and of a skeleton ship, with Death and Life-in-Death as its crew.  In mediation, the parties, like the Ancient Mariner, need to tell their tales of the horrors of their broken marriage.  And like the wedding guest, the mediator must hear it. 

The way the mediator listens and responds to the story of each spouse is critical.  The advice of Abraham Lincoln on negotiation is especially helpful here:

If you would win a man to your cause, first convince him that you are his sincere friend.  Therein is the drop of honey that catches his heart, the great high road to his reason, and which once gained, you will find but little trouble in convincing his judgment of the justice of your cause, if indeed that cause really be a just one.  On the contrary, assume to dictate to his judgment, or to command his action, or to mark him as one to be shunned and despised, and he will retreat within himself, close all the avenues to his head and heart; and tho' your cause be naked truth shall no more be able to reach him than to penetrate the hard shell of a tortoise with a rye straw.

Such is man, and so must he be understood by those who would lead him, even to his own best interest.
The mediator should encourage each spouse to structure his or her comments as follows:

  1. the issues (what's broken, e.g., no agreement on custody, child support, alimony, property and debt division, etc.);
  2. the positions (what each party initially believes is the fair way to resolve the issues); and
  3. the interests (why the parties have adopted their respective positions, and what each party really wants).

After each turn, each party and the Mediator has the opportunity to ask questions and clarify the issues, positions, and interests.  No matter what, the mediator will want to summarize, in neutral terms, each party's story, to show he or she heard what the parties said.  This diplomatic summary helps to restore each spouse's self-esteem, and emphasizes that each spouse is playing an important and influential part in the mediation.

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During the negotiation stage, the Mediator will want to keep the focus on the future, rather than the past, and on "interests" (what the parties really want), rather than blame.  Instead of taking "hard positions" against an "adversary" to emerge "victorious," the idea is to work together as friends for a just and lasting peace.

The Mediator's job is to help the parties summarize, in neutral terms, what the parties are saying (separating "fact from friction"); help the parties get the information they need to make informed decisions; keep the parties on a level playing field; test reality, and keep the parties focused on settlement.

To accomplish this, the parties should focus on objective criteria, e.g., the present expenses and financial needs of each party, the available resources of each party, and the projected future expenses of the 2 households.

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Parenting Plan

Where possible, avoid the words " sole custody," "primary custody," "visitation," and "primary care-giver"  These words are charged with emotional sticker-shock, and exalt the form of the label over the substance of the relationship between each parent and the children.   Instead, consider words like "time sharing arrangements" and "decision-making responsibilities." 

The Mediator will want to help the parents focus on:

  1. What the children require from each parent;
  2. How each parent visualizes his or her future relationship with the children; and
  3. How each parent visualizes the other parent's future relationship with the children.  Remind the parents that the children had little or no say about the divorce and the massive consequences divorce brings to their lives, so it's especially important to be sensitive and compassionate about the kids' need to be with both parents. One eye-opening illustration for the parents is the following story: 

The parents of two young children could not agree on who would get custody, and were called into the family court judge's chambers before the custody hearing. 

The Judge leaned forward in his chair and asked the Mother: "Do you love your children?" 

The Mother replied: "Oh yes, Your Honor, I love them very much."

The Judge turned to the Dad:  "Do you love your kids?" 

The Dad answered: "Yes, Judge, they're everything to me."

The Judge then sat back and said: "Well, I don't know your kids or love them the way you do.  Do you want me to decide what happens to the children you love?  Go outside right now and work out custody."

Break down the issue of custody onto more manageable parts, such as focusing the parties on the time arrangements (weekly, holidays and special days, vacations), decision-making responsibilities (health care, education, religion, and sports).  There are various guidelines for visitation schedules that can help the parties focus on the time arrangements according to the parents' skills and circumstances and the age of the children. 

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Property Division

It helps to tackle property division issues before child and spousal support issues, because the outcome on property division will determine in part each spouse's need for, or ability to pay, support.

Informed, voluntary decision-making is at the core of the mediation process. Each party must have equal access to, and fully understand, all relevant information.  The parties need to have all necessary information before they can effectively negotiate about dividing up the marital property.

The parties should address property division in the following chronological order:

  1. Identify the assets/debts, including the dates relevant to them, such as the date of acquisition of the property, the date of marriage, and the current date.
  2. Valuate the assets/debts according to the date of marriage and the current date.
  3. Divide the assets/debts according to the Marital Partnership Model.

A necessary step in the divorce action is the filling out of the Family Court's forms relating to financial statements, such as the Income and Expense Statement, the Asset and Debt Statement, and the Child Support Guidelines Worksheet.

To fill out these forms accurately, the parties will want to obtain copies of

2 prior years of federal income tax returns to corroborate the financial data; the most recent statement of retirement-type benefits; insurance policies; business and personal checking and savings accounts; and lists of real and personal property.  Where possible, the parties should be encouraged to fill out these forms together.

Sharing this information will help invoke the power of momentum toward settlement, because each party will be placed on a level playing field.

Sometimes, an appraisal will be necessary in order to value important assets, such as real property and businesses.  The process used to make such a valuation presents another opportunity to establish the rhythm toward settlement.  For example, if a residence needs to be appraised, the mediator may encourage the parties to seek agreement on who will be the appraiser, how the appraiser will be paid, what information will be provided to the appraiser, and that the appraiser's valuation will be accepted by both parties as the fair market value of the residence.  The emphasis on "agreeing on how to come to agreement" provides a ritual for the parties to follow for the other issues in the divorce.

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Child Support

The Family Court's Child Support Guidelines provide the basic formula for determining child support.  One approach to seeking agreement on child support is as follows:

  1. Determine what one party may have to pay the other for child support pursuant to the Child Support Guidelines ("Guidelines").
  2. Determine whether "exceptional circumstances" exist, such as where application of the Guidelines against the high income earner may yield child support payments which are in excess of the reasonable needs of the children. 
  3. Determine who will provide for the children's health care costs, both for health insurance and extraordinary health care. 
  4. Determine whether the children will be attending private school and/or college, and how the cost for such education will be allocated.
  5. Determine the allocation for extraordinary expenses, such as orthodontics.  For example, payment for braces could be split equally, or proportionate to the income-earnings of each spouse.
  6. Determine the method of payment (direct vs. wage assignment through the Child Support Enforcement Agency).
  7. Determine tax implications, such as allocation of the dependency deduction.

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Spousal Support

The emotionally charged issue relating to spousal support, or "maintenance," or "alimony," is the balancing of financial responsibility.  Most people start with the assumption that "equality means equitability."  However, when there's a gross disparity between the financial capability of the parties, the higher earner spouse may be asked to pay alimony to the lower earner spouse, in order to achieve an adequate level of financial security for both parties.  The two essential questions are: how much, and how long.  For the spouse who may have to pay alimony, it helps to understand that spousal support is tax deductible by the payor and taxable to the payee.

There are three categories of spousal support: transitional, rehabilitative, and permanent.  Transitional support focuses on the immediate post-divorce period, and whether the party seeking support can meet his or her needs independently, or needs support to maintain the standard of living established during the marriage.  Similarly, for the higher earner spouse, the inquiry is whether he or she can afford to pay alimony out of current income while still sustaining himself or herself at the marital standard. 

Rehabilitative support focuses on the usual occupation of the spouses during the marriage, and the vocational skills and employability of the party seeking support.  If school or other training will enable the lower earner spouse to become financially self-sufficient, then alimony for this purpose may be fair and reasonable.

Permanent support focuses on the age and physical and emotional condition of the parties.  Where there is an older spouse, without realistic wage-earning opportunities, or where a spouse is physically or emotionally disabled, and therefore unable to work, then the duration of the alimony payments may be permanent, although this is rare.

The Mediator can reduce the fear and anger attendant to the spousal support issue by asking questions of each spouse which focuses them on what life is going to be like after the divorce, and creating a plan to maintain or achieve the marital standard of living.

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Impasses are so likely in divorce mediation that it helps to consider them as an inevitable stage in the mediation itself.   When impasses do occur, a useful approach is to conduct a negotiation within a negotiation -- a play within a play.  The three acts in the play are:

  1. Talk story;
  2. Exchange offers and compromises; and
  3. Create the crisis of a deadline so that the parties focus on reaching agreement about resolving the impasse.        

In other words, use the same techniques we applied to the original issues in the dispute, by finding out what's broken, who's being blamed, what underlying interests are at stake, and what solutions are available.

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The Devil's Advocate

Perhaps the greatest service the mediator can perform during an impasse is that of "devil's advocate."  Historically, the devil's advocate was the church official whose duty was to question the evidence offered is support for a demand for canonization.  The mediator should, like the devil's advocate of old, politely but firmly "test reality" by asking each party to articulate the consequences of its proposed solutions and the consequences of failing to reach agreement.  During an impasse, the emotions the spouses are feeling are so overwhelming that the mediator may want to use not only the power of reality testing, but also the power of reality creating.

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Reality Testing: There's No Joy in Mudville

It's common in divorce mediations that one spouse, or both, announces some pretty extreme positions, the satisfaction of which are the nonnegotiable conditions for "settlement."  Here's some "reality testing" questions which the mediator should ask to help the spouses see that there will be "no joy in Mudville:"

  1. What would you give to get the other side to accept your view?
  2. What would you want to accept the other side's view?
  3. What is your best case scenario?

    a. How will you prove the facts for each claim or defense?
    b. How will each lay and expert witness testify?
    c. What is the law for each claim or defense?What is your worst case

  4. What is your worst case scenario?
  5. How much will each cost you?

    a. Add up the cost of each pleading, deposition, legal motion, expert fee, trial  preparation day, trial day, appeal, etc.

  6. How long will each take?
  7. What's the likelihood of each scenario?
  8. What is your preferred outcome?
  9. What is your fallback outcome?

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Reality Creating: Crossing to the Bright Side of the Road

If the impasse is still not broken, the mediator may want to pursue a "reality creating" ritual.  The idea is to get each spouse motivated, on a deep emotional level, to creating a future that's in the best interests of everyone.  Once that emotional commitment is made, the bridge to the bright side of the road won't seem so hard to cross.

  1. In caucus, the Mediator may ask each spouse to describe, in detail, the past consequences of the issues over which there's an impasse: what they have cost him or her in terms of happiness, finances, health, security, and relationship with the kids. 
  2. Next, he may ask each spouse to describe, in detail, the present consequences of the impasse, again in terms of happiness, finances, health, security, and relationship with the kids.
  3. Next, he may ask each spouse to describe, in detail, the future consequences if these issues aren't resolved, again in terms of happiness, finances, health, security, and relationship with the kids, day by day, week by week, month by month, year by year. 
  4. Then, he may ask each spouse to describe, in detail, how he or she wants the future to be, to envision how resolving the issue can make the future fulfilling and successful, again in terms of their happiness, health, security, and the kids. 
  5. Finally, the Mediator may tell each spouse that he or she doesn't have to continue to live on the dark side of the street.  Tell each spouse that they have the chance, right now, to cross over to the bright side of the road.  Ask each spouse which future he or she is committed to create, and how resolving the impasse will make that bright future begin right now. 

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Once agreements have been achieved, they need to be written up.  The Proposed Agreement in Contemplation of Divorce ("AICOD") is a working document which can be modified and executed after legal review.  This agreement outlines the legal responsibilities of the parties and consequences for noncompliance.   It also provides for a way to resolve future disputes or changed circumstances. 

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The mediator doesn't give legal or financial advice.   The parties need to make decisions with a full understanding of their legal and financial concerns about financial planning, property rights, and the tax aspects of divorce.  This is why the AICOD should be reviewed by the parties' attorneys and accountants.

The parties' attorneys and accountants should perform a legal and financial review of the proposed AICOD.  If the agreement is incomplete or unsatisfactory, the parties return to mediation to settle any remaining issues or incorporate suggestions made by their experts.

When the agreement is incorporated into the divorce decree by the court, it's legally binding.  The attorneys will complete the formal divorce procedures (filing and serving the pleadings, etc.)

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It's normal for the parties to have changes in circumstances or difficulties implementing some aspects of the AICOD.  These can be constructively resolved with a follow-up mediation session.  Any change to the AICOD has to be approved by the Court in order to be legally binding. 

Here's a mediation clause for the AICOD:

Because the circumstances of the parties' lives are likely to change and the future renegotiation of parts of this Agreement is to be expected, they agree that if any disagreement should arise that cannot be settled directly between themselves by negotiation, they will first attempt in good faith to mediate the dispute with the services of a mediator of mutual choice.

Experience has shown that parties who reach agreement through mediation, rather than litigation, are less likely to return to Family Court with post-divorce disputes.   With the right ritual of resolution, and the assistance of the attorneys, divorce mediation can achieve for the parties "a just and lasting peace."

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