MORE COMMONLY ASKED QUESTIONS ABOUT DIVORCE AND MEDIATION
- Do we need lawyers in addition to a mediator?
I always advise that you have a lawyer review the divorce agreement to ensure that the agreement is fair to you. There is NO REQUIREMENT that you do so. I have found that if a spouse is confident that the terms in the agreement are fair to them, they often do not have an attorney review the agreement. Those who are less confident or unsure of themselves are more likely to have the agreement reviewed.
- How can we reach an agreement when every conversation ends in a fight?
This is where the mediator comes in. Both parties are less likely to “fight” in front of the mediator. Secondly, it is up to the mediator to “guide” the mediation away from arguments. While it is natural that a divorcing couple is going to disagree and “fight” about certain issues, an experienced mediator is able to minimize the conflict and direct the parties to productive discussions.
- Is mediation a form of “couples counseling?
No. Mediation has nothing to do with helping the couple reconcile. Mediation comes after counseling- when parties have decided to divorce.
- Is mediation helpful for families?
Very. This is one of the best reasons to mediate as opposed to going to Court. If the divorcing parents devise a parenting plan for their children post-divorce, they are much more likely to cooperate in co-parenting. I have found that if a couple litigates a divorce, and a judge makes a decision regarding the children, the parents often end up back in Court with disagreements about parenting time and custody. In addition, the children are not participants to a Court battle, which could very well scar them for life.
- Is mediation the best option for everyone?
No. Both parties must be willing to talk and compromise. If one party is at a serious disadvantage to the other party: for example if one party has been physically abused, or is so afraid of the other party that they cannot negotiate with the other party, mediation will not work. These are cases in which the Court must intervene and make decisions for the family.
- Once we reach an agreement on the terms, are we divorced?
No. There is a short (five minutes or so) Court hearing which is necessary to finalize your divorce. The judge's function is to ensure that the marriage is broken, and also to ensure that the agreement is fair to both parties.
- What if we try mediation and it doesn't work for us?
About 90% of mediations do succeed, but even if it doesn't it should help you decide many of the issues in your divorce. This would make it considerably easier and less expensive for lawyers to “litigate” the undecided issues.
Why is mediation so much less expensive than traditional divorce?
Several reasons: 1. You are paying one professional instead of two opposing attorneys; 2. You are doing the work, with the help of the mediator; 3. Lawyers and mediators charge for the time they work on your case. Because mediation is much more efficient and faster than a court battle, less time means less expense.
- Why does divorce mediation work?
A divorce mediator can and will explain divorce law to you. Once you are aware of the law it is easier to come to an agreement.
- It is easier to talk to your spouse about the issues when in the company of a divorce mediator.
- An experienced divorce mediator can help you deal with difficult issues which you probably could not resolve without such assistance.
How do we determine or agree upon more complex issues?
Once again this is where an experienced divorce mediator comes in. If the complex issue is division of retirement funds, or the marital home, or valuation of property- the mediator has dealt with these issues before and can guide you to a resolution. In some very complicated cases, the valuation of a business for example, the mediator may suggest that you hire a professional business appraiser to value the business.
Do we need to file for divorce before coming to mediation?
No. Mediation can help divorcing couples come to terms on the issues of the divorce either before or after the actual divorce filing.
- What are the risks of divorce mediation?
Quite frankly there are no risks. By law any information revealed to the mediator is confidential. So if the mediation does not succeed, the mediator by law cannot be forced to testify or reveal anything about the mediation. The risk is in not trying mediation, because the outcome of a litigated (court fought) divorce is extremely uncertain.
- Can mediation assist parents who are already divorced address changing circumstances?
Absolutely. The process is the same as for divorce mediation. An experienced divorce attorney/mediator can inform you about the applicable laws, and assist you in “modifying” a previous divorce agreement.
13. Do we always meet together, or can we meet separately, or perhaps be in separate rooms during mediation?
Mediators vary on this question. Meeting alone with the mediator is called “caucusing.” In very rare cases do I agree to speak to one party separately. My neutrality is absolutely critical to a successful mediation. If I meet with one party separately, the other party may naturally feel that I am biased against them. When mediating, I do so with both parties present, and all communications (email or telephone) are copied to both parties.
- Is mediation possible when one of the parties is out of state or county?
Absolutely. With today's technology it is quite common to set up skype, or an open phone line on speaker, so that the parties can communicate as if in the same room. This is another advantage to mediation.
- Does the Court require mediation?
No. But I can tell you that the Court loves it. The Court system is overwhelmed with family law cases. Any time a couple has an agreement worked out before coming to Court, it takes some of the burden off of the judges and the Court system as a whole.
- What are some of the other benefits of mediation?
When a couple is contemplating or commencing a divorce, there is a great deal of mis-information. Wife thinks husband wants this or that, and vice versa. It is amazing that when the parties sit across from each other, it become clear that what the parties thought, or heard from other people is often incorrect.
- Does mediation address the issue of fairness in divorce?
Yes. If the agreement reached by the parties is patently unfair to either party, I will not sign off on it. It will not be filed with the Court and both parties will be advised (very strongly) to retain their own counsel.
- Do mediators tell us our legal rights?
Yes. This is a very important topic. The mediator can and will INFORM the participants of the law as it relates to their individual situation. However, the mediator cannot and will not give the parties legal ADVICE. This distinction is best explained by example: Wife and husband both ask the mediator “what is the law as it relates to child support?” The mediator can answer that question by informing the parties of child support guidelines and other laws related to child support. Next, the child support recipient asks the mediator “What can I do to receive more child support?” There may be strategies to accomplish this, but the party is asking for legal advice, and this request will politely be declined.
Does a mediator have to be licensed in Massachusetts?
No. Anybody can hold themselves out as a “mediator.” However, it is incumbent upon the parties to ensure that the mediator is trained in the law and mediation. Often times non-lawyers (usually mental health professionals) practice mediation. While they may be trained in mediation, they are not trained in the law. It is advisable that the parties find a mediator who is both an attorney and a trained mediator.
- Who pays for the cost of the mediation?
Usually this is split equally between the spouses. But this does not have to be the case. If the parties agree that one will pay more than the other, they are free to make this choice.
- What are some of the issues discussed in divorce mediation?
The simple answer to this is everything necessary to be decided during a divorce. I work from a checklist so that I don't forget anything. The checklist includes the following: child custody, child support, parenting time, alimony, medical insurance, payment of uninsured medical costs, payment of extracurricular expenses for the children, division of all marital assets (home, other personal property, retirement funds, stock portfolios, etc.), college expenses for children, tax considerations for children, how to handle marital debts, how to handle inheritances and pre-marital assets, and many others.
- If my spouse wants to hire a lawyer and I don't, can we still mediate?
Yes. After each session your spouse can consult with their lawyer to receive legal advice (which the mediator cannot provide.) This may give your spouse the reassurance he or she needs to proceed with the mediation. There is no requirement that either party must retain their own lawyer.
- We both have our own attorneys and they want to attend the mediation. Is this ok?
It is up to the mediator, but it is not ok when I mediate. Your lawyer has their own agenda. They feel that they must “fight and disagree” to justify their fees. I simply find that their presence is counter-productive and I do not allow it.
What are your hours of operation? Do you offer evening appointments?
Yes. I offer sessions at 5:00 and 7:00 in the evening and on Saturdays.
- Can I do mediation by myself if my spouse refuses to attend?
Yes and no. You can come in by yourself to be informed about the mediation process. But your spouse must attend to make joint ongoing decisions regarding your family's future.