As a domestic relations mediator, I'm often asked "what should I bring to mediation?" The short answer is, "whatever documents you think you need related to custody, child support and/or property division." This is not intended to be flip. However, you know the facts of your own case better than I do--and the level of accord and amicability between yourself and your spouse or partner. Specifically, what do you think he or she will need to see to accept your claims about salary, your debt, etc.?
As a mediator, I don't need or want to see your documents because I am not an arbitrator or fact finder. Accordingly, if the parties do not dispute each others claims no documentation may be needed. However, if you are likely to disagree and squabble over these items, it makes no sense to spend hourly mediation fees to establish readily verifiable things to the other party's satisfaction.
That said, Gregory Kincaid has penned a somewhat helpful article in the ABA's Summer issue of Family Advocate, outlining What to Bring to Your First Mediation Appointment. Id., Vol. 35, No. 1. Although I don't agree with everything he says, its a useful organizing tool. First, a divorce with children will generally involve three or four basic issues:
1. A parenting plan--the allocation of responsibility and time share;
2. child support;
3. division of assets and liabilities; and
4. in some cases, alimony.
In New Mexico, child support will be largely established by statute based on each parent's income and the percentage of time they have custody or time share. Besides wage/earnings, the parties will also address work related day care costs, insurance premiums.
Assets and liabilities will be identified on separate sheets, but ultimately must be considered together since the ultimate division of all property--including assets and debts--must be divided "fairly." Thus, for instance, an uneven distribution of property could be offset by an inversely uneven distribution of debt. Typically, in fact, this is what will occur, since assets and debt rarely divide mathematically equally but instead require a bit of jiggering.
Kincaid recommends bringing budgets, and proof of phone bills, etc. In New Mexico, that is generally not relevant except perhaps in setting up an interim agreement to meet various obligations while a long, drawn out divorce is pending. However, the final Marital Settlement Agreement will generally only address community assets worth over $250, and accrued debts, while the Parenting Plan/Child Support will be based on gross income NOT net income.
This means that many routine, recurring debts will not be relevant. Parties at some point will be faced with the disheartening realization that divorce is expensive--you are often losing one income stream and trading it in for an extra set of household bills. Regrettably, to the extent a party will not be able to pay all of his or her monthly bills and still make child support payments or service debt allocated in the divorce, it will be up to him or her to reduce their monthly bills.
Another point on which I disagree with Kincaid is his belief that "mediators are generally required to advise you to have your own lawyer." A party is always free to be represented by an attorney but, contrary to what many other attorneys say, an attorney is not always necessary. However, a mediator should tell the parties they are free to consult an attorney, and recommend they do so before signing any agreement. Additionally, a mediator may be ethically bound to require the parties to obtain counsel if the mediator feels one party is incompetent or otherwise unable to exercise autonomy in negotiating with the other party.
Ultimately the most important thing to bring to your first mediation--which Kincaid does detail well--are a positive attitude or "your adult self," an open mind, willingness to listen, and ideas you've already though a bit about, concerning about priorities and what you'd like to see happen with you, your children, your family, and your futures. Usually the most important--and time consuming--part of mediation will not be the divvying up of assets, debts or familial responsibilities, but rather envisioning, talking about, and identifying the means of creating your new lives.
If you are
interested in child-related mediation or GAL (guardian ad litem) services,
please contact Pilar Vaile, P.C. at
(505) 247-0802, or info@pilarvailepc.com.
