Divorce Options: Mediation

Posted on November 23, 2014 by Gail Otis

Since the economic meltdown that began in 2008, many family law attorneys have noticed a difference in the goals of parties in divorce cases. Prior to 2008, some people who were initiating or facing divorce were willing to fight over everything if it meant that their soon-to-be ex-spouse would somehow suffer in the process, emotionally and/or financially. Despite the fact that attorneys advise their clients of the pitfalls of highly contested litigation, divorce is a very emotionally charged matter and often leads to protracted, costly litigation. But beginning with the economic downturn, parties soon began to realize that jobs were being lost and/or were difficult to obtain, expenses were rising while income was not, savings were dwindling and there was no extra money available to waste on litigating. Since then and more than ever before, parties are seeking alternatives to the high cost of litigation. The alternatives to contested divorce (litigation) that will be addressed here and in upcoming posts include mediation, collaborative divorce, and private adjudication.

Mediation: Parties who choose mediation may or may not choose to retain an attorney to advise them during the mediation process and to review the final draft before execution. Mediators cannot provide legal advice to parties, so if a party has questions about the law, or about what a Judge may or may not do if the case was litigated, a mediator is unlikely to provide that information. The parties jointly retain a mediator, who facilitates their discussion of the issues in their case and helps them to try to reach agreement. If your mediator is an attorney, s/he may agree to prepare a draft agreement. If your mediator is not an attorney, then s/he may not draft an agreement for you - doing so is considered to be engaging in the practice of law. If you have retained an attorney to review the agreement, the draft is then provided to that attorney. I am often asked why a party should pay a mediator and also pay an attorney to review the agreement. The answer is that the mediator is not your attorney; both parties in the mediation are the mediator's clients. Furthermore, if your mediator is not an attorney you may not become aware of the repercussions of certain issues, such as the tax consequences of dividing certain assets, what constitutes grounds for the Court to deviate from the Massachusetts Child Support Guidelines, what will the Court consider in an agreement that has an alimony waiver, what might be some of the questions asked by the Court at the divorce hearing, etc. Some mediators require parties to have counsel to review the agreement, others do not. As already stated, some mediators will draft the agreement, and others will or may not. How quickly you and your spouse are able to resolve your divorce in mediation depends for the most part upon 1) how organized each of you are, 2) how able you are to communicate and whether you are able to compromise, and 3) how available you, your spouse, and the mediator are for the sessions.

I often represent a party, as advisor and reviewer, when they and their spouse have chosen to resolve their divorce issues through mediation. I also offer mediation and have assisted parties, as the mediator, to resolve their divorce issues. I strongly support mediation not only because it is less costly (usually), but also because it is often less emotionally harmful to the family and it enables parties to have more of a voice in how their divorce is resolved. When I meet with a client before a mediator has been identified and before their spouse has retained an attorney, I offer the following guidance in addition to the information in the paragraph above.

  1. If both parties are in agreement to pursue divorce through mediation, they should retain separate counsel who understand the parties' goal, and are able to support it.
  2. Each party should, ideally, have a pre-mediation session with their independent counsel to be advised about the process and how the party should prepare for the sessions. For example, your attorney should provide you with the Financial Statement that will be required by the Court and have you begin to work on completing it with the goal of making it available to the mediator, when one is selected. Your attorney should also discuss with you, in advance of the first mediation session, what the issues will be that should be discussed and decided in the sessions. Other issues may arise during your mediation but a family law attorney will know what the usual issues are to be decided.
  3. It is important that you understand that the process may be affected, positively or negatively, by the counsel you and your spouse retain to advise each of you and review the agreement. For that reason, I strongly suggest that each party retain counsel who has had considerable experience supporting mediation and working with parties during the process.
  4. Finally, it is very important to select an appropriate mediator. So, what do I mean by that statement? I mean that, in my opinion, selecting a mediator who is or was a family law attorney is the most ideal option. There are a number of former Probate & Family Court judges, now retired from the bench, who are providing mediation services and I include those individuals in this response. A family law attorney should be very knowledgeable about what issues must be addressed (or not!) and what language should be in an agreement. For example, some Judges will not accept divorce agreements in which the parties have specific obligations, financial or otherwise, related to family pets. If the mediator you are considering does not write the draft agreement, then you will incur an additional cost to have an attorney draft it if you and your spouse have decided not to retain attorneys to advise you and review the agreement.

Ask the potential mediator if they will offer a free, brief, consultation so that you can meet and see if you would feel comfortable working with them - after all, you and your spouse will be discussing details of finances, perhaps parenting issues and, possibly, you may have some sensitive discussions in their presence. Ask questions about their practice and background, as well as about their rates and how and for what they charge - questions you should also ask of any attorney you may consider retaining to advise you and review the agreement.

In the next post we will review the process of collaborative divorce and how it differs from mediation.

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