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.
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.Divorce Tags: Divorce, Family law, Mediation Comments (0) Trackbacks (0)