Whether negotiating a prenuptial agreement or dissolving a marriage through a divorce, the parties to a dispute have decided they want the flexibility and attention to detail afforded by mediation.

Although it is not mandatory, it is advisable that both parties to a mediation hire a reviewing attorney. A reviewing attorney is retained by an individual to help guide him or her through the process. Unlike the mediator, a reviewing attorney is an advocate who will advise as to each issue with the goal of protecting his or her client’s interests.

A reviewing attorney may be hired before mediation begins to guide the parties throughout the process, or after the agreement is reached to review its terms. Involving the reviewing attorney early can help the parties navigate the issues as they arise; the reviewing attorney can provide the client with insight as to what the law provides and how a court would likely rule so that the client can make informed decisions. However, it is essential that the parties hire reviewing attorneys who will honor the creative and collaborative nature of the mediation process.

The first mediation session begins with the mediator listening to both parties and identifying the issues that need to be resolved. The mediator will outline the issues for the couple and seek their input as to which issues they want to address first. For example, a newly-separated couple with young children might want to begin by resolving a parenting schedule before moving onto their financial issues. For others, they might find it more urgent to first resolve certain financial issues first. The mediator provides the parties with legal information but does not provide legal advice. Reviewing attorneys provide legal advice to their clients.

The mediator walks the couple through the disclosure process, and together they decide upon the level of disclosure with which the parties and their reviewing attorneys feel comfortable in their mediation.

Sometimes, it is important for each side to have comprehensive financial disclosure of the other party’s assets, liabilities, income, and interests in irrevocable trusts. In these cases, we typically disclose assets that are in the client’s own name; additionally, we disclose if the client is the beneficiary of an irrevocable trust and knows the terms and assets of that trust. In other cases, this level of disclosure is not necessary.

Mediation sessions ordinarily run from 90 minutes to two hours long. The process is flexible and guided by the parties’ preferences. Sessions may occur in person or online. Reviewing attorneys can be present, but they need not be. Parties choose in what order to discuss the issues and the speed at which they wish to move through them, with sessions once weekly or monthly, for example.

Following each session, the mediator sends the parties a memo summarizing what they have agreed upon and what remains to be discussed. The parties have an opportunity to agree to or amend the terms. If parties are working with reviewing counsel, they will discuss the memorandum, which documents the agreements reached with him or her.

Once the parties have reached a resolution as to all outstanding issues, the mediator will draft an agreement.

After both parties have provided their comments to the agreement and all agreed-upon revisions have been incorporated, the agreement can be executed. For parties who are divorcing, the mediator may also draft and prepare all of the requisite divorce documents to be filed with the court.