What is Mediation

 

me•di•a•tion:
The act or process of mediating; especially : intervention between conflicting parties to promote reconciliation, settlement, or compromise.

Divorce or the end of a long-term relationship is arguably the worst possible time to attempt to be equitable in negotiating the division of assets and custody of children. Emotions run high. Instinctually, parties tend to seek a lawyer. And not just any lawyer – when you are angry and wronged you want the meanest, baddest lawyer in the land! Friends and family will encourage this as a logical first step, as the perception of “winners and losers” will pervade in those early conversations. However, many couples do themselves a tremendous disservice by retaining a lawyer immediately, especially in terms of future co-parenting issues. At some point in time, all divorcing parties realize that there really were no “winners and losers”.

At its core, a marriage or long-term relationship is a contract between individuals to share lives, homes, assets and any issue resulting from the union. When both parties immediately retain attorneys, it places the parties in adversarial positions. Rather than working through an equitable settlement, lawyers will inevitably attempt to extract the maximum benefit for their client, as that is what they are primarily paid to do. Their job is to “zealously advocate” for their client. Of course, those of us who have been through this process can tell you that some of that “zealousness” will cause irreparable harm.

Mediation is a voluntary process whereby parties to the divorce or termination of an intimate relationship jointly agree to negotiate with each other in good faith, face to face. The settlement of the asset division, arrangements for custody and support of children, and many other issues are settled in a civilized manner, without litigation. The mediator is not a lawyer. Rather he is an unbiased observer in the negotiations. His job is to facilitate. The focus of such mediation is equity and common sense. In most cases, the parties are able to recognize that the relationship has run its course and has come to an end. The job at hand is to re-write the terms of any future relationship between you, with the hope being that you move on to a new chapter in your healthy, productive life. By striving to minimize the adversarial stances, both parties will save time, heartache and money. Oftentimes, the savings in each of these areas can be quite substantial.

One of the greatest benefits of mediation is the private and controlled manner in which it is conducted. Have you ever spent an hour in the Courthouse? If you have, you can certainly understand why this is so important. Under Massachusetts law, conversations held and negotiations undertaken in the presence of a qualified mediator are protected from public display. This means that the mediation process is completely confidential and can, at no time, be used in court as evidence. This prohibition includes any written materials generated during mediation as well as the mediator’s case file. Parties meet with the mediator on a schedule that they control. With the mediator’s assistance, financial analysis is performed and agendas are set for discussion of each of the issues necessary to craft a valid and enforceable divorce settlement. After a series of meetings, each with a specific goal, the mediator will draft a proposed memorandum of understanding for the parties to review. Often, parties will review this document with their own attorney to ensure that the agreements reached meet the legal requirements of the Commonwealth of MA. The final agreement becomes the basis for the divorce decree signed by the Judge.

Asset Division
Mediation can bring fairness and sound financial reasoning to the potentially complicated issue of asset division in divorce. With both parties agreeing to negotiate in good faith through an impartial mediator, the role of an attorney and a Judge is limited in the mediation process. The end result is a settlement that makes particular sense to the parties to the divorce, not influenced by the lawyers’ bias and Judges who have limited time to fully understand your situation. Because we hold the lawyers off during this process, unnecessary costs are dramatically reduced which preserves assets for each party and the children. When the agreements are reached, each spouse will benefit from the knowledge that they were fully involved in the process and that the agreements reached are fair and acceptable. Statistics show that agreements reached in this manner are far more likely to be honored over the long run, as opposed to receiving a judgment from the Court that may or may not make the best economic sense for your particular situation.

Parental Rights
Perhaps one of the most difficult things for divorcing parties to agree on is how they will raise their children going forward. Yet one thing the experts clearly can see is that agreement as quickly as possible is strongly in the best interests of the kids. One of the really shameful aspects of the court litigated process is the amount of exaggeration and outright lying that goes on – often in the name of the children! Those inflammatory statements may well seem necessary and productive if your ultimate goal is based upon money or control issues. But let me remind you, even at this early juncture in the conversation that you are going to spend the rest of your life sharing parenting duties with your ex-spouse. It is my strong opinion that the Courts should mandate substantial mediation in all matters of parental rights. I, for one, do not believe that the Commonwealth of MA should be taking a primary decision making role in this area, unless the facts of the case clearly dictate that the parents are not capable. Mediation is the best and perhaps only way to allow divorcing parents the opportunity to build lasting agreements as to how they want to raise their kids in the new dynamic of a two home family.

Other considerations:

• Custodial arrangements and visitation schedules
• Tax deductions and consequences
• Child support and alimony
• College tuition and costs
• Medical, dental expenses and insurance
• Life insurance

Benefits of Mediation versus Litigation

• Mediation is far less expensive than a litigated divorce action
• The length of time from divorce filing to decree is far shorter
• Each partner maintains control of the process
• Mediation is far less traumatic for both children and parents
• Confidentiality of mediation is protected by Massachusetts Law
• Mediated “fair and reasonable” separation agreements are enforceable
• Mediation is a self-determined course minimizing frustration in favor of a primarily therapeutic outcome
• Mediated settlements statistically are more lasting and honored by the parties

 

"In Life We Cannot Avoid Change, We Cannot Avoid Loss.  Freedom and Happiness Are Found In The Flexibility and
  Ease With Which We Move Through Change.
"
- Budha’s Little Instruction Book, Jack Kornfield, Bantam Books