Ten Things You Need to Know About Divorce Mediation

Nearly all unsettled divorce disputes are sent to mediation by Michigan judges.  The courts often require mediation before trial because the process can be highly effective.  

Here's ten things to know about the mediation process:

1.    The choice of mediator is normally agreed on between attorneys.  Rarely does a court assign a mediator without input from counsel.  Lawyers chose a mediator based upon several factors--familiarity, cost, wait times, prior successes, personality and process.

2.    Mediation is ordered by the court.  Once lawyers agree, the mediator's name is included in a court order for mediation.  Unless the case settles, the judge will expect the parties to participate in mediation.

3.    It may take a while to get in.  Good mediators are in demand, but often worth the wait. 

4.    Mediator cost is split.  Absent unusual circumstances, courts will usually split the cost of mediation between the parties.  Mediators charge an hourly rate depending on thier skill and locality.  Mediators will send out a letter confirming the date and time of mediation.  In order to hold that date, a deposit is usually required.

5.    The parties are rarely in the same room during mediation.  Mediators design their own process but few have the parties and counsel in the same room.  The mediator will go between rooms, carrying offers, questions and messages back and forth.  Mediators will often take the attorneys and/or financial experts aside but will not meet with the parties together or alone absent unusual circumstances.  Some call this "shuttle diplomacy."  There may be a group meeting at the end to record a settlement.  

6.  Mediation is expensive.  Both parties' attorneys are present with their clients at mediation.  Financial experts for both sides may also attend.  There is a significant amount of preparation required for both counsel, their experts and the mediator before the process can begin. The combined hourly rate of mediation can be very high, but trials are much more costly.

7.  Mediation can be a long process.  Depending on the complexity of the case and/or the willingness of parties to compromise, the first divorce mediation can take up to a full day.  Often mediation can take more than one session, with weeks in between each if schedules are tight or additional information is needed.

8.  Mediation can end with a signed or recorded settlement agreement.  Often mediators or counsel will draft a settlement document to be signed by the parties or record terms at the end of mediation.  This is meant to expedite the process and avoid "buyer's remorse."  The divorce will not be official until the judge approves and signs a judgment or decree, but a signed settlement agreement is almost always binding on the parties, even if one changes his or her mind later. 

9.  If there is not a settlement, the court will not know specific offers or mediation discussions, only that the case did not resolve.  Because parties are encouraged to make their best offer of compromise, the court will not know what the stance of each side was at the end of mediation.  This is to encourage folks to open up without fear that their last/best offer becomes a starting point for the court. 

10.    Mediation is almost always worth it.  Many client go into mediation with the expectation their case will never resolve, and they're doomed to proceed to trial.  It's imperitive to keep an open mind.  Horrific or exagerated points or views expressed in the opponent's mediation brief may simply be posturing or playing to the client's needs.  Mediation can break down those walls.  

Mediation is an important (and inevitable) step in the divorce process.  At best, the case is resolved and the parties move on.  At worst, the mediation process sorts out the issues and provides a dress rehearsal for trial.

Keep in mind that mediation is far more efficient and humane than trial.  

 

HOW TO PREPARE FOR A ZOOM COURT HEARING

    

The pandemic forced the legal community to "Zoom" into the 21st century.

1. What is a Zoom hearing?  Remote access by telephone, computer or other means is not new. Judges have had the discretion to take testimony or oral argument by telephone as long as the proper advance procedures are followed by the attorney or litigant. COVID 19 and the closure of the physical courtroom in response has necessitated that judges and court administrators quickly set protocols in place so that justice can continue through audo and video access to the Court. Zoom is an app or website which is often used for this purpose.

2. Who sets up the Zoom hearing?  Usually court personnel will send an email prior to the hearing with login information. It's fairly easy to click on the link and enter the hearing.

3. When does the remote access hearing start? Once all the participants have logged on either the court clerk will appear and verify that everyone is present, or the Judge will appear.  If you see a white screen stating the host will let you in, wait until that occurs.

4. Tips for using Zoom?  Do not have light sources at your back, particulary windows or you will appear shadowy.  Have the camera of your computer or phone at eye level.  Close yourself off from pets, children and other distractions.  Dress profesionally and do not wear a cap.  Do not look distracted i.e. check emails while in the hearing.

5. Can I record?  Usually there is a prohibition against recording. The Court will record the hearing.

6. Is a Zoom hearing public?  Usually yes. There should be information in the notice describing how the public can gain access.

    7.  Use common sense.  If driving, pull over.  

           No kids or pets.                                            

           Stay muted until called upon. 

         Act as if you are in a live courtroom.  Remember, the proceedings are recorded, so say or do nothing you would not want preserved for posterity.

What's a Quadro? (QDRO)

DO I NEED A QUALIFIED ORDER TO DIVIDE A PENSION IN MY DIVORCE?

If you're asking the question, you or your former spouse must have pension or retirement benefits which accrued during your marriage.

QDRO is an acronym for "Qualified Domestic Relations Order."  Depending on the nature of the Plan, you may also hear reference to a "Qualified Order."

Expect the process to take several months.

Once the Judgment of Divorce is filed with the Court, the most torturous part of your separation is over, but there's still work to be done.

Qualified Orders are typically prepared and filed after the divorce judgment or decree is signed by the Court.  They are legal documents prepared by a third party, signed by the Court and approved by a retirement plan administrator

Most family law attorneys do not draft Qualified Orders.  They rely upon actuaries, accountants or attorneys specially trained in the the division of pension benefits to draft these orders.  These professionals are better acquainted with the nuances of each plan as they have typically dealt with varied employee retirement benefits.  Each company is different.  There's no "cookie cutter" pension or QDRO.

Judgments usually delineate who will draft the retirement division orders and how much each party will pay.  Most Judgments do not contain deadlines for the process so be proactive.  Your attorney is busy tying up other loose ends and may expect that you will continue the process:

1.   Get in touch with the professional who will be drafting the qualified orders.  Find out the fees and where to pay them.  Most charge a flat fee per order.

2.   Be prompt in making payment.  These companies do not begin the process until they are paid.

3.   Follow up and make sure your spouse has paid his or her share.  If not, get in touch with your attorney and ask her to try to move things along.

4.  Check with your attorney or the preparer's website or office.  Often there is a worksheet which must be filled out and documents needed such as statements showing balances at the time stated in the Judgment. Pull those together and ask your attorney to review and forward to the preparer.

4.  Depending on the complexity of the plan or account to be divided, it can take several weeks before a draft is completed and circulated.

5.   Read the draft carefully.  If needed, call the preparer or your attorney for clarification.  The terms in the qualified order should mirror those described in the Judgment.

Once everyone has approved the qualified order, it is sent to the Judge for signature.

If both sides cannot agree on all of the language or calculations in the qualified order, it could mean a return to the Judge for interpretation.

Once entered by the Court, the qualified order is mailed to the Plan Administrator is named in the order.  Clarify with your attorney exactly who is sending it in.  It should be one of your counsel.

The Plan Administrator can be a designated employee or officer of the business, or an investment company contracted by the employer such as Fidelity.

Each Plan Administrator has its own approval process which can take up to sixty days.  Most Administrators will notify you directly by mail if the qualified order is accepted or rejected.

The letter of approval will spell out exactly how the Administrator will comply.

It's not unusual for an order to be rejected, often for simple reasons such as an updated plan description or incorrectly named administrator.  If that occurs, do not be alarmed.  Administrators must comply with IRS and other state and/or federal requirements which are forever changing.

If rejected the Administrator will spell out exactly what provision needs modification or tweaking.  The preparer typically makes the change upon receipt of the rejection letter with minimal charge.

The entry and approval process then repeats itself, but usually at a faster pace.

It all seems complicated, but these are fairly common orders.

The end is in sight.