Divorce Mediation Process
Going through the divorce process is undoubtedly stressful even when both parties agree it is in their best interest to part ways. In fact, years ago, two psychiatrists developed a scale for ranking 49 life events according to the amount of stress they cause. The scale is still used today by psychologists and psychiatrists as a baseline to know how to best help their clients. Second on the stress list is divorce. Only the death of a spouse is a more stressful life event.
Important decisions need to be made. If there are children, the parents will likely have life-long contact with each other and must focus on what is in the best interest of their children. Although there is no way to take all the stress away, mediation (as opposed to litigation) can help minimize this stress.
Mediation: An Overview
The Massachusetts courts define mediation as “an informal, confidential process where a neutral person called a mediator acts to encourage and facilitate the resolution of a case without prescribing what it should be.”
The mediator does not give legal advice even though, in many cases, the mediator is a family law attorney. The purpose is to guide the couple into reaching their own agreements about division of assets, child custody and visitation, child support, alimony or spousal support terms, and even who gets to keep the family pet.
The role of the mediator is broad. Some of the duties include:
- Assisting the parties in identifying their issues.
- Helping them assess the strengths and weaknesses of their specific points of view.
- Determining common interests.
- Encouraging joint problem-solving.
- Exploring settlement alternatives.
- Obtaining advice from other professionals, such as child psychologists, CPAs and others who may meet with the parties and be part of the mediation process.
Each party may have his or her attorney present if the two agree to it. If legal counsel are not present, mediators generally encourage parties to have legal counsel on call so they can break and ask advice whenever they feel the need to.
If the parties are unable to come to an agreement, one or both of them can terminate the mediation process and the case will proceed to litigation. It is also possible to come to an agreement on some issues, but leave others for litigation and court decision.
If the parties come to an agreement, a settlement agreement is filed with the court. The family law court will, in most all cases, approve the agreement. It then becomes the court’s judgement and has a binding effect on both parties. The agreement can only be modified or changed if the parties agree to it or if there are changed circumstances.
Although a court order after litigation can be appealed, a court order pursuant to an approved mediation agreement cannot.
Confidentiality of Mediation
The mediation process is confidential. The mediator’s work is protected by work product confidentiality. The mediator cannot be subpoenaed as a witness if mediation fails and litigation proceeds. Anything either party says during the mediation cannot be brought up in court during the litigation process.
Although some states have exceptions to the confidentiality rule, Massachusetts confidentiality law is absolute. There are no exceptions and all matters discussed within the confines of the mediation process remain confidential.
On occasion, with the agreement of both parties, the mediator may meet privately with one party. What is said during these meetings is not shared with the other party unless agreed to.
Benefits of Mediation
There are number of reasons why divorce mediation is encouraged over litigation.
- It generally saves time and money. The parties schedule their time and do not depend on a schedule that is court-ordered. There are fewer court appearances which saves money. Also, the parties can jointly hire a mediator and other professionals that may be part of the process instead of each hiring their own.
- The parties control the decision-making process. They do what they decide works for them, not what a court says is right for them.
- According to the Massachusetts court, studies show that the parties are more satisfied with the outcome of the divorce when they have formed their own agreement. Because the couple worked out their issues on their own terms, they are much more likely to abide by the agreement than one that is court-imposed.
- When the parties abide by the agreement, future litigation is avoided.
- When children are involved, mediation is better for them. It focuses on mutual agreement and avoids the acrimony that often comes with litigation.
- Establishing a mutual parenting plan lets the children know the parents are in agreement, not in conflict.
At Infinity Law Group, we encourage mediation and assist our clients through the mediation process. We prepare the final agreement and file it with the court. We are ourselves mediators and have three convenient Massachusetts office locations. Contact us to arrange for a complimentary phone consultation.