Mediation is an Alternative to Litigation

Facing decisions relating to the end of your marriage or how to share custody of your children can be stressful. Standing in front of a judge with a room full of people watching you and your ex argue about the intricate details of your life can be even more overwhelming.

Thankfully, there is a way to avoid this situation and limit any anxiety you may have about the decisions you need to make regarding your divorce or custody of your children. Our experienced mediators can work with you and your ex to help guide you through the process and resolve all of the issues necessary when it comes to your divorce or custody case.

Mediation is a confidential process that helps to avoid highly-stressful litigation, the threat of the unknown when a stranger is deciding your future, and the significant costs that often come along with a confrontational court battle. Alternative dispute resolution instead encourages cooperation, transparency, communication, and allows you to keep your future in your own hands.

What is Mediation?

Mediation is a flexible and voluntary process that looks for common ground between each person who will have to live with the agreement in the future. This process offers the ability to create an agreement that will work best as a whole for everyone. Mediation is not about winning or losing. It is about finding common goals and interests that the family unit, even after it is separated, will continue to share. Alternative dispute resolution focuses on remaining amicable and cooperative so that the best outcome to address the needs of both parties and the children are reached. Mediation often concentrates on strengths rather than focusing on negatives.

The Basics of Divorce Mediation in Massachusetts

Mediation is a voluntary process that takes both people willing to put their differences aside and work together to come up with a resolution. If the mediation is for a divorce, it does not mean that both people want a divorce. Instead, it means that both spouses recognize that one person wants a divorce which means the marriage will terminate regardless as Massachusetts does not require both spouses to agree to divorce. If you and your spouse have come to an understanding that a divorce is imminent and you would each rather work out an agreement than go to court, mediation could be right for you. Each of you also should have the ability to speak up for yourself in a respectful manner. Mediation is not about proving why you are right or making the other person feel forced into agreeing with you. It is about being able to talk about the issues that are important to you, whether this is done in front of your partner or privately with the mediator. If you can do this, mediation can work for you. If you cannot do this, you may want to hire an attorney that can help you talk about the issues and resolutions as you see them.

Our mediators have been trained to deal with some volatile situations. So long as both sides are willing to negotiate, be respectful and listen to the other person or the mediator, then mediation could still work. It may be a situation where the two of you are not placed in the same room or hold joint discussions right away, but that does not mean this process will not work for you. However, if there is a true imbalance of power – such as a domestic violence situation, then mediation might only work if you bring an attorney with you to help level the playing field.

Even if you do not mediate and decide to litigate instead, there is no rule that you need to hire an attorney. Within our firm, our mediators understand the law as they are also attorneys; however, they cannot provide you with specific legal advice. Because they act as neutral third-parties in these situations, they can only talk about the law in an objective way to both of you. Mediators cannot provide you with legal advice that may give you an unfair advantage over the other side. Because of this, we always encourage you to at least talk with an attorney so you understand your rights and what the agreements you are coming to may mean for you specifically. Some of this may be addressed in a generalized way during mediation, but entering into a judgment is a big deal. If you have questions about anything you are agreeing to, we highly encourage you to hire an attorney. We have conducted many mediations where attorneys were not used so it’s not necessary, but we do encourage it so each person does not feel like they are potentially entering into an agreement they should not be. If there is an imbalance of power between you and the other person though, such as with severe domestic violence cases or in extremely controlling situations, we may determine that we will not conduct the mediation without the use of attorneys.

Having open discussions and negotiations does take a certain level of trust, and dealing with a liar can make things more difficult, no matter which process you choose to take to resolve your divorce or custody matter. If there is a question about what is said, it is not unusual for the mediator to request documentation to verify.

Prior to your first mediation session, you will receive some intake forms to fill out, a mediation agreement and retainer submission form, a confidentiality agreement, and some general information about the issue you are facing, whether that be divorce, custody, guardianship, or any other family-law related issue. As with anything, preparation is key. You should spend some time thinking about what is really important to you and why so you are able to articulate that when you have the opportunity to do so. You should think about what might be important to the other person, if you have not already discussed it, and think about ways the two of you could potentially both get a satisfactory outcome.

You should also know about your financial position and start thinking about what is going to happen when your case is resolved. Things like where you are going to live, how often you will have your children in your care, what additional expenses might pop up, and how you are going to support yourself and your children moving forward. The most efficient mediations take place when the participants are prepared yet remain open-minded to new ideas about how to resolve the matter.

Although some people have been through a divorce or custody case before, for many people, their mediation is their first time addressing the legal side of those issues. There are a lot of laws and regulations that they are not aware of. Because of this, many people do not even know what to ask for within this process. Often, this is where hiring an individual attorney can be very helpful. Through legal counsel, you can learn about your rights and potential obligations prior to commencing alternative dispute resolution. A mediator is not allowed to provide legal advice as they are not acting as an attorney during or on behalf of either person during the mediation.

Generally, mediation can start at any time, but it usually makes the most sense to start this process before anything is filed in Court. This process is fairly flexible, so it can be incorporated around both participant’s schedule and needs whereas in Court, you get a date and a time and you have to be there. Mediation can be initiated after the Court process has started as well and has helped a number of people avoid going to trial as they are able to reach settlement.

Mediation is a wonderful alternative to litigation; however, there is no guarantee that you will walk away with a full agreement for judgment. If an issue arises that one or both of you become non-negotiable on, that can result in a stalemate type of position within the mediation process. Sometimes the mediator can help both of you work through a place that looks bleak, but there are some instances where an agreement just cannot be reached.

If a situation like that occurs, there are a few options you can take. First, the mediator can still draft up a Memorandum of Understanding based on the issues that you did agree upon. That way it can sometimes help to keep the disagreements focused only on the one or two issues. Second, you could give it a little time and then try another mediation session to see if movement is possible at a later date. Third, you could file in court to enable you to get some judicial feedback on the issue. Sometimes one or both people simply needs to hear what a Judge might say and then, once they do, they can come back to mediation and finalize an agreement. It is important to note that regardless of whether this dispute resolution is successful, this process remains confidential. The mediator cannot be subpoenaed into Court. The two of you can present a stipulation that incorporates the agreements you were able to reach within mediation, but you cannot hold a person to what they agreed to within mediation until it enters as a court order.

Sometimes it is not that the participants cannot work through the issues, but perhaps it is a situation where one person feels as though the mediator has become biased or is not listening to what they are saying or they are feeling rushed through the process. Just as with every other relationship, it is important that both parties feel comfortable with the mediator they are using. Sometimes just changing mediators can help move through a situation that was not working out before.

While every case can go to mediation, this does not mean that every case should. There are two specific types of cases that are likely not right for this process. If you have a case that is highly-contentious not just because the people hate each other, but one that is coupled with a significant history of domestic violence or an imbalance of power, that situation is not likely going to work out in mediation. In addition, if you have a case where one person is not willing to negotiate or tries to provide false documents or information, then this situation may not work either.

Just because you and the other person are not on great terms or there is a level of adversity, that, in and of itself, does not mean mediation will not work. You do not have to be best friends with someone for this type of dispute resolution to help you reach an agreement. There are a number of tools mediators have to help work through extremely difficult cases. This might include bringing in outside professionals to help explain difficult financial concepts or help both people understand how the agreement will affect them in the future tax wise. Our mediators are trained to help people not only reach agreements but be able to find the support he or she needs to allow them to reach those agreements successfully.

Having a support network is usually a great thing, but who that support network consists of can sometimes cause mediation to thrive or fail. The majority of times, mediation is conducted with only the mediator and the two parties present. After the initial session, if there are other support professionals necessary, it may be possible to have them join the session either via phone, virtual conference, or in-person to help discuss some of the issues. For example, if neither party understands how their agreement may affect them in the future tax-wise, it might be helpful to have an accountant come in and speak with both parties at the same time and answer all their questions. This way no one feels like they are getting false or misconstrued information and both parties are able to educate themselves to allow them to feel comfortable with the agreements they are making.

Sometimes, it is a wonderful addition for each party to utilize a mediation-experienced attorney. This would be representation who can educate you on your rights, help you vocalize your desires, and help come up with some creative solutions. However, having an attorney who is focused on showing the other side why they are wrong or ensuring their client does not give up anything that they might be able to get if they went to court is not going to be helpful to the overall experience.

It is important to note that you should not bring a new spouse, parent, or anyone else to a mediation, without speaking to the other party first. Often, too many cooks in the kitchen spoil the meal and can cause the mediation to take a downward turn. It also may cause jealousy or anger to pop up when the goal is to keep things calm and amicable. It is great to have people in your life to support you, but it is usually best to keep your cell phone near you and simply give them a call when you are by yourself or just with the mediator to give an update.

Mediation is the process of having a neutral third-party help you and the other person to reach a mutually agreeable settlement. Mediation Coaching is someone you can hire to help you prepare and go through this process. The mediator cannot give you legal advice and cannot tell you if you are entering into a deal that is not truly best for you. A Mediation Coach is similar to having an attorney who can provide you with legal advice and direction, but generally has a much more understanding attitude of the dynamics it takes to settle a case rather than litigate it.

The functions of a Mediation Coach is to prepare the person going into the mediation be able to understand what they want out of this process, how to articulate what they want and why, think about and prepare for how to react to the other side or how the other side may react to their proposals, and to work with them and provide feedback about decisions that need to be made.

When you hire an attorney, you hire someone to represent your specific interests and advise you on the law. An attorney cannot represent both parties within litigation because each person’s interests may be different. An attorney can help you strategize a case to put you in the best position to obtain the outcome you are seeking.

A mediator is a neutral person who does not present you with legal advice or take sides. The goal is to hear what is important to both parties dealing with the divorce or custody issue and help them reach a place where they are able to resolve any disputes in a way that works for both of them moving forward.

Mediation is a flexible process that works to make sure both parties are given information about how the negotiations will be conducted and what is expected of each of them to help them reach their ultimate goals. Each party will have the opportunity to express their opinions and produce or request documentation that verifies any information that may be in question. The parties will collectively be assisted in creatively negotiating outcomes that hopefully give both sides what they are looking for. A mediator may then assist both parties in creating the final documents needed to settle your matter in court.

Our mediation team seeks a retainer in the amount of 6 hours-worth of time that is usually shared equally between the two parties or is paid out of joint funds. This initial retainer allows the mediator approximately fifteen minutes to a half-hour to review the initial intake documentation, either two individual mediation sessions that are 2.5-hours each or one that is 5-hours, and approximately a half-hour to forty-five minutes to draft the Memorandum of Understanding. Any additional time that is needed is expected to be paid in advance to any future meetings being held in 4-hour increments.

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