THE MEDIATION PROCESS
The actual commencement of the process is typically a phone call from a spouse who is considering or is at the door of divorce. They have heard that the mediation process is less hostile and certainly less expensive than a litigated divorce in Court. But beyond that, unless they have done considerable research, their understanding of the process is minimal.
The caller spouse makes an appointment to "interview" the prospective mediator, at a time convenient for husband, wife, and mediator. It is critical to the process that the mediator meet both spouses simultaneously. In a successful mediation it is imperative that the mediator be "NEUTRAL AND IMPARTIAL." If either party feels that this is not the case the mediation will not succeed. To this end I will not meet with either party individually, and any phone calls or emails between mediator and the parties will be copied to the other party. Quite often the the spouse making the appointment wants to "give their side of the story" on the phone to me. If this happens I will politely stop that party with the explanation that I must remain neutral, and that I do not want any information on the couple at this time.
When the parties arrive for the initial interview they are understandable nervous. I try, as much as possible, to put them at ease. The first few minutes are often a bit awkward. During this session, which lasts as long as necessary to answer the client's questions (and is free of charge), I conduct a brief overview of what the process entails.
I explain to the parties that I am absolutely neutral. As explained above this is imperative. It is also important that the parties are at the table "VOLUNTARILY." If they are not there of their own volition the mediation cannot succeed. So I will ask them directly: "Mr. Jones, Mrs. Jones- are you here voluntarily?" Once an answer is obtained the client has spoken for the first time and a dialogue ensues. I am not there to give a speech. I am there to provide information and answer the many questions which the parties have.
Furthermore it is important that the parties understand my role, which is to provide legal information regarding divorce to the parties. Information regarding custody, child support, alimony, property division, taxes, and many other topics is important to the parties. It is unlikely that they know the laws regarding these issues. My job is also to be a "facilitator." I assist the parties reach an agreement. How? I make sure that all relevant topics are covered; if an impasse on an issue arises, it is my job to suggest a creative way to break the impasse. Lastly it is my job to draft all documents and to ensure that the Court will be satisfied with the agreement presented to it by the parties.
It is just as important for the parties to know what is not my role. My role is not to decide anything. I guide and suggest, but never decide. The process is for husband and wife together to decide how they want their family to go forward post-divorce. It is their process, not mine. Also, I am not either party's lawyer. Oftentimes the clients think I represent them both. Not true. The parties need to know that I cannot, and will not give them legal advice. For example if wife asks about the law regarding child support, I am happy to answer that question. It is legal information. But if wife asks me if, or how, she can get more child support I cannot answer that question. Legal information yes, legal advice-no.
This of course begs the question of how does a participant obtain legal advice. The answer is that some participants have an attorney in the background to ask such questions. This is not necessary, but for those parties who need such advice, this is the channel to receive it.
The parties are also advised that mediation sessions are "CONFIDENTIAL." Anything and everything said or done during the mediation is absolutely confidential. If I was called to testify at a trial following a failed mediation, I would tell the judge that by statute the contents of the mediation were confidential, and I would not be forced to answer any questions. There must be a certain level of trust between the parties to achieve a successful mediation, and without confidentiality that trust cannot be attained.
The parties are encouraged to ask questions during the interview session. Dialogue is always preferable to monologue. This is not about me. It is about the parties, and how I can help them move forward. A typical question, which is often the last to be asked is: "how much does it cost." Of course this is important. Most people will not make a substantial purchase without knowing the price. The answer is simple: between $2000 and $5000 altogether in almost all cases. How the parties pay the fee is up to them. It can be 50/50 or 100% by one party. It is totally up to them.
If the parties decide to start the mediation, we can often start at that time, or we make an appointment to commence within the next week or so. The parties are given a great deal of print information: domestic relations questionaire, financial statement, among other things.
At the first session I ask a series of basic questions of the parties to give me an idea of where we are. I will ask the following: length of marriage, length of separation if any, names and ages of children. These are followed by determining the occupations and incomes of the parties, and then the collective assets and liabilities of the clients. This process takes 5-10 minutes. It is just a very cursory summary of the parties family and finances.
Now we delve into the meat of the mediation. There is no set way to proceed. This is when the "art of mediation" begins. How to commence discussing substantive topics is not written in any book. It is a matter of feel. The mediation starts to take on a life of its own. The bottom line is deciding how the parties desire to co-parent children, and how is one family going to live financially as it now becomes two separate entities. I work from a check list to make sure that all topics are covered and that the agreement reached is fair to both parties. How we get from A to Z is different in every mediation.
Sessions are generally limited to two hours, but I do not let a clock run the mediation. If the mediation calls for a break before the expiration of two hours, that is fine. If things are rolling along, the session can go longer. One to five sessions is typical. Rarely is it more or less.
On occasion full agreement is not reached. Perhaps one very sticky issue cannot be resolved, despite the best efforts of the parties. Is the mediation a failure? Of course not. If the parties need the Court system to assist them in resolving one issue, that is certainly preferable and less expensive that starting from scratch.
But let's assume that ALL issues are successfully agreed upon. At that point I will write a "draft" separation agreement and email that to the parties for their review. They are free to take this to an attorney of their choosing for review if they want or need reassurance. This is not a requirement, but it is advised.
The final session tends to be bittersweet. There is relief by the parties that agreement has been reached, but there is also the sadness which naturally accompanies the reality that the spouses are about to sign the documents which will end their marriage. I take this time to explain the agreement line by line, if necessary, to the parties. Once understood and agreed, the parties will sign. They will then be prepared for a short, usually five minutes or less, Court hearing. The role of the Court is to ensure that the agreement is fair to both parties, and to approve the agreement. Once this is accomplished there is a technical 120 waiting period, after which time the divorce is final.
Contact A Cape Cod Lawyer Handling Amicable Divorce Cases
From his office in Sandwich, Massachusetts, Attorney Morris works with individuals and families throughout the Cape Cod and Plymouth areas of the state. Our clients include divorcing couples in need of a mediator, people needing individual representation during mediation and people engaged in family law litigation.
To learn more about our firm, contact us to schedule a free, no-obligation consultation. Attorney Morris takes the time to answer all of your questions so you can embark upon the mediation process with confidence. Please call 508-833-2622.