How Can Proactive Mediation Help Couples To Structure Lasting Agreements?

Mediation is well recognized as a process for resolving conflict.  From international disputes to neighborhood disagreements, mediation is touted by many as an efficient, cost-effective, and productive mechanism for dispute resolution.  However, despite the rather widespread embracing of mediation and its curative powers, few suggest mediation as a tool for the prevention of conflict.  From decades of helping clients to reach agreements, we, at the Centre for Mediation and Dispute Resolution, have learned that a settlement, in and of itself, is insufficient.  Lasting agreements are not based solely on the “here and now” elements of the dispute.  Indeed, agreements need to stretch further by anticipating future issues of possible contention and including terms to prevent dissent.

In this article we will focus on divorce agreements and consider a few examples where proactive mediation can help couples to structure lasting settlements:

ASSET DIVISIONS

Asset divisions are not open to reconsideration, more commonly referred to as modifications, unless one party or both did not fully disclose his/her assets or was dishonest in the presentation of present and future expectations.  Yet, even straight-forward asset divisions may occur at different times/events and/or involve differing kinds of payments.  A knowledgeable and skilled mediator will assist couples to analyze the implications inherent in:

• Divisions (e.g., of retirement funds) that take place at some future date—even as soon as the time of divorce—need to consider any potential change in valuations that will negatively/positively impact each individual
• Future division of jointly-held property ( e.g., marital house) needs to be specific about dates/events that will trigger a buyout or sale.
• Settlement payments need to be tied to precise dates and/or events and precise delineation of funds to be paid.

SUPPORT PAYMENTS

Unlike asset divisions, modification of support—child support and alimony— is a common court occurrence.  Typically divorce agreements specify the amount of support payable from one spouse to the other and include termination events and/or dates.  Perhaps to a lesser extent, some agreements also define adjustment terms.  For example, child support may be subject to reduction when the child goes to college.  We, at CMDR, suggest that couples be more introspective at the time that they craft their settlement, rather than have to depend on future modifications in which the outcome is unpredictable as well as emotional and financially costly.  Couples should consider:

• Agreement terms for periodic recalculation of support based on changes in each spouse’s income over time.  Such terms can, if desirable, include income floors and ceilings, in the formulaic undertaking.
• A broader consideration of variables that impact the ability to pay support and/or the need for support assistance (e.g., liability for college funding and its impact on child support provisions).
• Listing of child-related expenses subject to shared contributions (equal or proportionate) or earmarked as one parent’s liability or payable from another source.
• The allocation of tax-related benefits for children.

Divorce mediation must deal with present circumstances and situations.  In mediation, as in court, agreements cannot be fashioned from wishes and desires.   Each individual’s documented needs cannot always be met.  Yet, to focus solely on the present is a disservice to clients.  A knowledgeable and skilled mediator needs to help couples to bridge the gap between the present and the future.  The mediation process should be proactive in guiding the couple to identify issues and concerns that will, or even may, arise in the future.  Although identification is step one, the second step is to include mechanisms for effecting change based on clearly defined terms.  The resultant agreement is not geared to the inclusion of nicely worded, unenforceable statements of intent; rather the process should be clear in its definition of terms and calculations for effecting change.  The future may be unpredictable but change, in different forms and ways, is inevitable.  Mediation provides a problem solving mechanism for bridging the gap between today and tomorrow.