Divorce mediation is an active process in which the mediator helps you identify all the issues that need to be covered in your separation agreement.

Your mediator will help you determine what it costs to live apart and, using that information together with the current income, help you determine the amount and duration of support. He will show you how the State Child Support Guidelines apply to your situation.

He will help you identify all of your martial assets, figure out their value, and help you to divide them fairly.

He will also help you make all of the future parenting decisions.

Mediation is conducted so that there should be no losers - one spouse should not win at the expense of the other.

Divorce by mediation is a nonadversarial process helping people negotiate directly and dissolve marriages once the decision to divorce or separate is made. He provides you with the opportunity to negotiate mutually beneficial terms in total privacy.

Divorce by mediation helps identify key issues concerning the division of personal and real property, support, parenting, and plans for the future. It helps eliminate the painful win-lose atmosphere that is part of all adversarial divorces. The process is a mutual search for a reasonable solution; neither partner can win at the other's expense. Resolutions must emerge from the process with a settlement crated and accepted by both. Mediation can also deal with specific limited issues such as times of access, what to do with the house, or other issues specified by you at the start.

The important aspects of Divorce by Mediation are that:

It is nonadversarial. You are partners in decision-making.
It is mutual. You both must agree on solutions, or there is no agreement.
It helps clarify areas of conflict. Most couples have some conflict. The mediator helps you limit the conflict and discuss things productively.
It gives you power. You control your own decision over your own lives.
It is best for your children. All of the discussions are tempered by the fact that you are both parents of your children and you will have a continuing relationship as parents after you have ended the spouse relationship. Most other forms of divorce negotiations forget the best interests of the children. In mediation it is always paramount.

You owe it to yourself, your children, and your future to learn more about mediation.

Fees are moderate and on an hourly basis. We charge no retainers. You pay only for the actual time you use.

We ask that you share in the fees in a way that is appropriate to your situation, remembering that the mediator is working for both parties.

The average mediation takes twelve hours. Mediation of specific issues or for couples without children is shorter.

Alfred R. Rego, Jr., J.D. is a practicing attorney with over twenty years experience in Family Law issues. He is a member of the Rhode Island Bar Association, The Academy of Family Mediators and the Rhode Island Council of Family Mediators.

How to proceed. All you need to do is to call and arrange for a mutually convenient appointment for you and your spouse to come in for a no obligation, free consultation. At that time, a detailed explanation of how we proceed is described. Both of you receive the same information, and therefore each of you can rest assured that you will be on equal footing from the outset of the proceedings.

Divorce by Mediation is not a legal service. The outcome of the mediation is a memorandum of understanding detailing all of your agreements that your divorce attorney will review and incorporate into the formal legal documents.

This pamphlet is provided as a public service. It contains general information and is not intended to provide legal advice; the facts involved in a specific case determining the application of the law. If you have specific questions about any matter contained in this pamphlet, you are encouraged to consult an attorney.

Client Mediation Handbook
Copyright 1978, 1989, 1991, John M. Haynes, PhD.

Divorce mediation is a process of dissolving the marriage in a nonadversarial way. The framework provides you with the opportunity to negotiate your own settlement on the assumption that the decision to separate and/or divorce has been made.

You may decide to consult with a lawyer at the beginning of the mediation process to insure that you know your legal rights, even though you will negotiate directly with your spouse in the mediation process. You are free to consult with a lawyer at any time during the mediation process; and you will need to have a lawyer prepare the legal documents based on the mediation, as more fully described below.

This is not an avenue to resolve conflicts of the past. You may begin to understand some of those past problems in a different light, but we will not be working to resolve them. Rather, we shall, through the process of mutual negotiations, attempt to define a new life with new options for each of you. To do this, there must develop a sense of mutual respect among the three of us.

Too often divorce is placed in a win/lose framework. Given that situation, compromise is difficult, since it is seen as a loss. A smart, if less than honest, tactic is OK because it means a win. However, the result is a loss for both of you, since winning in this situation denies a part of the other's humanity. The divorce mediation process is designed to eliminate the win/lose atmosphere. Since the process is mutual, you can't win at the other's expense. Neither can you lose. You must come out of it with a settlement acceptable to both of you and controlled by both of you. We call that a "win/win" solution.

With control over the outcome you also experience a sense of power over the life decisions. The important aspects of divorce mediation are that:

• You emerge from these negotiations with a new sense of dignity and a clearer sense of self and what the future holds for you.

• You can place the past behind you and concentrate on the future.

My function is to assist you reach a settlement. I do not represent either of you individually. My commitment is to a settlement you can both live with. I will use my mediation skills to help you identify those areas of agreement and those substantive areas of disagreement. I will help you negotiate the substantive areas of disagreement to reach a settlement. I will also manage the conflict between you so it becomes productive rather than destructive.

The process

In the first phase I will help you to identify the parameters for negotiations. I will be working with you to define your short- and long-term goals. Obviously, you have given this whole matter considerable thought and you have many ideas on what the ultimate settlement should include. You can "sound out" ideas before proposing them. I can help by sharing my experience with you on what has worked in the past for other couples and what the norms are.

I cannot define the settlement, and I cannot impose an agreement. My role is to assist you reach your agreement. I will not take sides on the issues.

I am interested in the settlement as a principle, and I am interested in you as people. I feel for your pain and want to help you through this difficult process and help diminish this pain. Finally, I hope to help you use these negotiations to place the past behind you. The marriage is ending, but you have a life ahead of you. That new life can be marred by holding onto the anger of the separation, or the new life can be an exciting opportunity to redefine yourself.

I'm working for and with both of you to help you reach a settlement that permits you to concentrate on the future and the potential it holds.

There is a typical process we will use to reach a settlement; however, your individual needs may cause us to depart from a strict adherence to it. During the process we will:

[] develop current and future income information
[] develop budgets
[] inventory marriage assets
[] begin to define each of your short- and long-term goals
[] define general areas of agreement
[] define substantive areas of disagreement
[] identify symbolic and emotional issues
[] work through the parenting arrangements
[] negotiate money differences
[] develop a settlement.

Sessions normally last two hours. However, we do not limit ourselves. Rather, we attempt to complete the business scheduled for that session.

My role as mediator is to help you retain your power over the decision-making process that affects your lives. My focus is on the future and helping you define new options to you.

Budgeting guidelines

The purpose of this guide is to assist you in defining what it will cost for you to live separately. Obviously, your total expenses will increase. However, in developing a budget you may also identify areas of expenditure that can be reduced without significantly changing your essential standards of living. In addition, the process of budgeting helps you to develop a rational data base from which to begin negotiations.

Budgeting is difficult for most people. Some see it as penny-pinching, others as bookkeeping; Few of us like either of these activities. Yet, budgeting is financial planning, which enables us to make intelligent decisions and rational choices.

We will not try to account for every dime as we prepare your budget. Doing so will drive you to despair. Use your checkbook records as general guidelines to fill in the categories supplied here. Do not try to reconstruct every expenditure. Our purpose is to enable you to establish broad outlines, and by drawing on experience, to project future needs, recognizing that your future needs will be different from the past.

As part of this process, I will share some averages with you when a particular item is way out of line with general norms. This will enable both of you to develop budgets you can live with.

The assessment is in four parts
1. current income
2. future budgets
3. assets
4. liabilities.

The budget

The budgets deal with anticipated expenses. They will differ for each of you depending on certain variables. For example, who will be primarily responsible for the children?

Will one of you continue to live in the family home? Often, the parent with prime responsibility for the child(ren) also remains in the home. The other, therefore, needs to calculate a budget based on an apartment rental or whatever other living arrangement is planned. These expenses are best calculated on a monthly basis. If your information is weekly, multiply one week's figures by 4.3 to get a monthly figure.

The prime purpose of completing this budget information is to provide you with a database with which to make decisions. I will work on these with you and we are looking for broad guidelines, not precise documentation. So, do not be overly concerned if you can't provide a specific figure - we'll work it out together.

In many marriages, one spouse has assumed responsibility for budgeting and handling the finances. This leaves the other "in the dark" when it comes to preparing this database. Doing the budgets provides both of you with the same data and enables you to make rational decisions about your futures.

There are times when the person who has most control over the money finds it difficult to share this information because knowledge is often equated with power. However, if you don't share this knowledge with your spouse now as the basis for reaching a mutual decision, you may have to share it later with a judge who will make a unilateral decision, thereby giving up all of your power. By sharing all of the information now, you assure that you will both keep and be able to exercise your power.

So, in a real sense, we are working together to provide you with the power to make your own decisions about your own lives. That means sharing data at this point so those decisions can be mutual.

Child Support

The Child Support Guidelines mandate that all child support be based on your actual income. It is assumed that you, as parents, will spend a specific percentage of your combined income on your children as follows:

one child 17%
two children 25%
three 29%
four 3 1%
five + 35%

The percentage is based on your gross income before deductions less money paid for FICA (social security) in the previous year.

It is assumed that each parent is contributing the same percentage to the children's expenses. In addition to the cash child support, parents are expected to share in the cost of child-care expenses incurred by the resident parent while working and uncovered medical expenses. (You are expected to cover your children under any employer-provided health insurance.) The ratio for sharing these expenses is the ratio of the two incomes less FICA.

We will start the process by reviewing the future needs as indicated by the budgets and then we will calculate and apply the child support guidelines. If you have a deficit following this part of the process, closing that deficit will be a subject of the negotiations.

As you collect all the data together, you begin to define the parameters of any agreement. You cannot divide what you don't have. You will begin to see that living separately costs more than living together. Therefore, there may have to be some reduction in the standard of living of both of you once the separation begins.
This leads to uncertainties and a sense of insecurity in you. That insecurity is as integral a past of these negotiations as are the emotional issues that led to the decision to divorce. Security will be sitting at the negotiating table with you, and you won't be able to leave until you settle its needs.

The data you have prepared enable you to consider some of the broad choices you need to make. Your final agreement will probably consist of maintenance and/or child support. There are pros and cons to each of these and to how payments should be divided. We will also consider the possibility of changing incomes and changes in the cost of living.

If you've been shopping lately for a new car or to replace furniture, you Blow just how expensive these items are. If you are just making ends meet and the washing machine breaks down for good, no amount of wishing will get you a new one. So, think about the cars, appliances, furniture and other high-cost items you have that might need replacement in the next two years and include them in the work sheet.

Your assets

Marital assets (everything you have accumulated during the marriage except gifts and inheritances) need to be identified, and an equitable distribution of these must be part of a mediated settlement. By and large, inheritances and gifts to an individual are considered non-marital assets. This is an "equitable division" state, which means it may be equitable to divide property other than equally. However, the decision of how you divide the assets is up to you: you know your needs. We will work on identification of marital assets and how to divide them.

Considering your children

So far we have concentrated on the economic issues. But, what about the kids? In our society people generally think about children in three ways: 1. As chattels-"They belong to me." "I've invested all I have in them. I see in them my hopes for the future." 2. As weapons-"If he thinks he's going to see them whenever he wants, he's nuts." "If I'm paying for them, I'm going to decide who visits with her and when I see the kids." 3. As people afraid about the future, divided in loyalty, having feelings and needs independent from either of you and dependent on both of you.

Most of us have a combination of these feelings and sorting out which of the feelings are valid is difficult. The reality is that your children need both of you and you both need the children. You are the only parents they will ever have, and they need you to cooperate in the future as parents. I will help you keep this in mind as you negotiate an agreement that provides for a parenting role for both parents in the best interests of your children.

One family court judge has developed a Bill of Rights of Children in Divorce Actions. Among those rights are:

• The right to be treated as an interested and affected person and not as a pawn, possession or chattel of either or both parents
• The right to grow to maturity in that home environment which will best guarantee an opportunity for the child to mature to responsible citizenship
• The right to day-to-day love, care, discipline, and protection of the parent having custody of the child
• The right to know both parents and to have the benefit of such parents' love and guidance through adequate access
• The right to a positive and constructive relationship with both parents, with neither parent permitted to degrade or downgrade the other in the mind of the child
• The right to have moral and ethical values developed by precept and practices and to have limits set for behavior so early in life the child may develop self-discipline and self-control
• The right to the most adequate level of economic support that can be provided by the best efforts of both parents
• The right to the same opportunities for education that the child would have had if the household had not dissolved.

Neither of you wants to put the children at a disadvantage. You both want the best for them. However, if the children are viewed as bargaining tools or are ignored during the negotiations, then there is a danger of harming them.

For these reasons, it is important to determine how the children can be involved in the decision-making process. They are entitled to some input on the issues affecting their lives. The precise nature of that input should be decided in the ways you make family decisions. You would not admit a six year old to the bargaining table as an equal. On the other hand, a sixteen year old won't accept placidly a living arrangement that (s)he had no role in shaping. Part of the negotiations is about how to involve the children appropriately in those parts that have a direct bearing on them.
There are many options open to you regarding your children. They include:
Joint residency: In this arrangement you continue to live in close proximity (usually within the same school district) with the children spending part of each week or month in each household, coming and going according to some comfortable arrangement.
Joint parenting: Here you agree to share all parenting decision-making even though the children live primarily with one of you.
Single custody: The children live with one of you who makes all the decisions with either an "open" arrangement regarding access rights of the other parent, or you make specific arrangements detailing when and where the other parent has access to the children.

The joint residency arrangement might prove to be outside your realm of expectations. But if you plan to live close by and you can tolerate the essentially unstructured nature of this arrangement, then you should give it serious consideration.

The important thing to remember is that you will always be parents to your children even though you decide no longer to be husband and wife. There are some well-written, easy-to-read, and helpful books that address this issue.

During the divorcing process, some people feel that whatever child contact they are granting the other parent is a concession. Such an attitude ties a stone around that parent's neck. In addition to normal access, each parent should consider the other parent's obligation to care for the children. For example, if your brother is sick in another city and you want to visit him, the children's need to stay at home for school may interfere. If you have a tight, carefully specified arrangement, you won't be able to ask the other parent to care for the children for a few days while you visit your brother.
You are both the parents, and while you may no longer be able to share the day-today responsibility of caring for the children, you can share the week-to-week responsibility.

Such an open arrangement also means that the children do not become a total burden on the freedom of one parent. This arrangement extends the parenting partnership theory of marriage into the post-marriage relationship.

The following points should be considered in determining parenting arrangements: the age and sex of the child, together with the interaction and interrelationship with both parents and siblings; the child's adjustment to home, school, and community; the mental and physical health of all involved.

So, in planning the future, think about these points. Your children have rights, and you have rights to frequent contact with them, or relief from the day-to-day burdens of child rearing. They have needs. You have aspirations for them.

How you work out the parenting issues will have a significant impact on the emotional life of your children and their future relationship with you as they mature.

THE NEGOTIATIONS

Preparation

Preparation is the key to successful negotiations. That is why we spend so much time preparing an adequate database from which to start. As we get ready to negotiate here are some good ground roles to follow:

Know Your Case and Your Rights
You should be fully aware of your rights and, if necessary, consult with a lawyer to insure that you are. This does not mean that a lawyer should negotiate for you. You should define what it is you need in the settlement. Once you have a broad idea of what you need, begin to think through why you need it. Separate out each piece and develop in your own mind your reasons for it.

Review the Other's Position
Having prepared your case, try to review the other's case. What is his/her response likely to be to your proposals? What argument is (s)he likely to advance in opposition to your proposals? What things is (s)he likely to advance to support these claims?

Identify the Constraints
As you are thinking these points through you will also begin to identify those external constraints that must be recognized and factored in. For example you cannot divide more than is totally available. You can't ask for $15,000 and expect your partner to live on $10,000 if the total income is only $20,000. Or, if there is only one auto, and one income producer, and the only way to get to work is by auto, then this places a constraint on who gets the auto. If you think these points through in preparation, you won't be surprised in the actual negotiations.

List Your Points
List the points you want to raise in each session; define your goals into an order of priority to help you decide what to emphasize in the session. As you prepare for the negotiations, the task will often seem formidable. You will worry about not doing it correctly and many aspects of it will rekindle anger as it touches on some of the reasons for the divorce.

THE ROLE OF THE MEDIATOR
My role at this point is to help each of you develop your case. I do this by focusing on what is in your best interests without regard to me other party, since the give and take must come from each of you in negotiations.

Guidelines for Useful Behavior
There are some useful guidelines for behavior at the meetings. I will start the discussion from areas of common agreement, rather than from an obviously controversial area. Once you have secured a beginning base of agreement on which to build, you will find that subsequent favorable accommodations are more easily reached on disputed issues.

As you reach agreements, I make a note of them, and we remove those issues from the table. That does not mean we can't reopen those issues later, and obviously nothing is finalized until the actual settlement is signed.

During me talks my focus is on reaching a settlement you can both live with. Therefore, I will always be looking for the yes and trying to avoid reaching a premature no. However, each of you has the right to say no to demands that are totally unacceptable to you.

In mediation I help you to make a good effort to see the other's point of view without losing sight of your own position. At the same time, you should be well enough prepared to explain me reasonableness or acceptability of your proposals. To help you do this, I will ask you to state your proposals and then explain why they are beneficial to the other as well as yourself.

It is often difficult to decide, and the more important the decision, the more difficult it is to reach. One way of easing the burden of making a heavy decision is to offer a "forced choice" of two alternatives. Think about situations where you can suggest two alternatives of approximately equal value. Be careful not to offer a choice between a something and a nothing. Always remember the goal you have set can be reached in many ways. Be open to alternative plans or routes to your goal. Try also to determine which goals can be "traded" for a goal of your partner. Negotiating is the art of compromising-that means giving and taking.

When tensions are high, as they must inevitably be in this situation, it is important to work at minimizing them. Thus, if you win a point in the debate or if the other concedes an item, be gracious. Credit the other with sincerity. It will make it easier for both of you to make other compromises.

Try to maintain your own sense of dignity. Don't plead your case. You have invested as much in this marriage as your partner has. Explain your position, discuss the issues, try to persuade, but don't plead - you have rights too.

The real art of negotiating is listening. You know your spouse very well. Listen closely for clues as to when and how concessions are likely. Don't talk more than necessary. Many an agreement has been lost because one person kept on talking past the point when the other was willing to agree. Remember that you can't give anything away when you are listening.

If you are not ready to commit yourself at any point, don't get pressured. Say you need time to think it over. I will be watching this point and will help you to avoid reaching a premature decision.

Always try your best to keep the discussion problem oriented. Don't let it become personality centered. If it does, I will try to reorient the discussion to the issues. If that cannot be done, we will terminate me session, since a personality centered discussion is detrimental to problem solving.

If a session becomes too difficult, feel free to ask that we end early. Your mediator will do that and you will be charged only for the time actually used.

Negotiating is a systematic search for solutions that will lead to a settlement you can both be comfortable with. It requires patience and some measure of good will. Even at its most successful, it cannot solve the problems that led to your decision to separate. However, it can help you implement this decision with less pain and with a sense of dignity and control over the process. Hopefully, it will also help you place the past behind you and help you focus on the future - a future you have helped determine, rather than one defined by a settlement imposed from the outside.

How to implement your settlement
When you have arrived at a settlement, I will prepare your memorandum of understanding. Fish of you then take that memorandum of understanding to your respective lawyers, who incorporate your agreements into a legal separation agreement. Sometimes a lawyer will suggest minor modifications to your agreement that you feel change the intent rather than clarify an ambiguity. If this happens, you should check with each other and the mediator. This is important because the agreements reached in mediation represent a total package, carefully balancing your mutual and self interests.

If your lawyer suggests substantial changes, you should consider the changes in the context of a continued mediation. That is, you know what you gave and what you got in the negotiations. Weigh the overall outcome and, if you feel the changes are warranted, return to mediation to complete the negotiations. The more complicated your financial situation, the more likely your lawyers will contribute to the final structure of the memorandum of understanding. You should not attempt to convert the memorandum of understanding into a legal agreement without the advice of a lawyer, since it is not intended to be legal document.

Fees
The fee is paid at the end of each session for the amount of time used in that session. We ask that you share in the cost of mediation in a ratio appropriate to you. There is also a fee of three hours time charged for drafting the memorandum of understanding and work conducted outside of the session.

If you need to cancel a session, please call the office and reschedule your appointment at least twenty-four hours before the scheduled time.

Copyright 1978, 1989, 1991, John M. Haynes, PhD.

This pamphlet is provided as a public service. It contains general information and is not intended to provide legal advice; the facts involved in a specific case determining the application of the law. If you have specific questions about any matter contained in this pamphlet, you are encouraged to consult an attorney.

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