What Is Divorce Mediation?
Mediation is for divorcing couples who seek an alternative to the expense and hostility of a contested divorce. The sessions are facilitated by a non-judgmental third party who is trained in family law, has an interest helping couples move away from fear, hostility and painful thinking, and who then helps the couple arrive at an informed, self-determined agreement which will be acceptable to the Court.
Are Mediated Agreements Enforceable By The Court?
Yes. Once the agreement is submitted to the judge for approval, then the agreement is fully enforceable.
Is Divorce Mediation Less Expensive?
Significantly! First, litigation involves two attorneys. Also, in litigation mistrust is assumed, there are endless mandatory and subpoena-like documentation demands, temporary orders, asset injunctions, and very invasive questionnaires regarding financial disclosure and conduct. If the case is not settled through attorney-four-way conferencing, then a trial ensues. All of this is bypassed by a couple who works collaboratively toward submitting an uncontested agreement to the Court.
How Long Does Divorce Mediation Take?
Depends. How complex are the issues? But more importantly, what are each of the party’s aptitudes for understanding of financial issues and concepts? Does a couple come to divorce mediation well researched as to what they want and what is fair; or, to what extent does a couple need to be “educated” by the divorce mediator in order for their decisions to be “informed” ones? How easily does a couple default to defensiveness and reactivity while listening to their former partner’s points of view? I often tell couples 2-5 sessions, but this is an average.
What Couples Are Suitable For Divorce Mediation?
To succeed at divorce mediation, couples need to have a baseline level of good-will toward one another. Put another way, does it matter to each of them that the other feel satisfied with the agreement, or does one or both parties simply want what they want without regard for the other’s needs? For parents, this needs to be coupled with an appreciation by each that it is in his or her self interest that the other parent not resent them if they wish to cultivate an allied post-divorce parenting relationship.
What Couples Are Not Suitable for Divorce Mediation?
Couples are not suitable if there is unwillingness or distrust regarding honest financial disclosure. Also, sometimes there can exist acute power imbalances, emotional or financial, and one party may be very conflict averse and have difficulty expressing his or her needs. This can manifest as one party’s rashly “agreeing to anything” just to move one. The flip side of this is one party’s willingness to part with anything or everything from a place of guilt for leaving the marriage. None of these emotionally driven impulses makes anybody bad, it just a factor that could be addressed when evaluating client suitability. Parties with retraining orders, or physical and emotional abuse, are pretty much a rule out.
Will A Mediated Agreements Preserve Legal Rights?
Yes. It is imperative that clients understand their agreements, understand how the law applies to their case, and how a Court would rule on a particular issue. That being said, it is not the role of a mediator to pigeonhole clients into cookie cutter legal outcomes because it is the norm in how a judge would likely rule. Couples often bring a wide range of proposals to the table that may divert from legal norms. While there is more scrutiny of long-term marriages and agreements relating to minor children, the vast majority of divorce agreements are court approvable. There are two basic factors a judge is looking at when approving an uncontested Massachusetts divorce: (1) Is each party informed of his or her legal rights — meaning, if he or she is waiving a right to which he or she might be entitled to under the law and the facts of the case, then is this waiver being exercised with full knowledge of these rights? (2) Is the judge satisfied that this decision is voluntary and without coercion?
Is should be noted that uncontested divorce hearings are pass/fail. The judge cannot decree or force changes to your agreement as part of a hearing for an uncontested joint petition for divorce, which is the only context in which a mediated divorce is filed. Ultimately, however, I will not prepare a divorce agreement and send a couple into court unless I feel both parties are satisfied with its terms, and I go to great lengths to explain the law so that the clients’ decisions are fully informed.
What if my spouse does not want the divorce?
Mediation cannot be conducted without the participation of both parties. If one party frequently cancels meetings, or comes unprepared, mediation will probably be dragged out over a longer time period then is acceptable to the initiating party. Also, if one party goes to mediation out of threat of litigation by the other party, such a dynamic will predictably lead to resentments being expressed indirectly during divorce mediation negotiations. My experience is that there needs to be an emotional cool down period, a living apart in the best of circumstances, where acceptance can occur for the other party, and for him or her to heal and catch up emotionally.
My spouse had an affair. Doesn’t that mean I am entitled to a larger settlement?
I never wish to in anyway minimize the pain that took place in anyone’s marriage, and will never do that. It should be understood, however, that a mediated, uncontested divorces are always filed under a “no fault” grounds. Moreover, even in contested cases, the courts do not act as arbiters of moral justice. With the advent of “no-fault” divorce, adultery no longer has a major impact on the outcome of your divorce, and does not influence factors like alimony, division of property, or child custody issues.
So, if your spouse had an affair, you cannot, in spite of your understandable hurt, expect your spouse to be punished by the divorce court; and if you’re the one who had an outside relationship, you don’t need to worry about receiving the short end of the settlement because of the affair. Such extramarital activities are not considered pertinent to the fair division of assets, or a parent’s ability to care for their children.
Does a divorce mediator need to be a lawyer?
No. That being said, it is very helpful if the divorce mediator is licensed to dispense legal advice and draft legal documents. This means that the lawyer/mediator can actually prepare all of the documents necessary for the divorce, schedule the uncontested divorce hearing with the judge, and therefore, the couple does not have to do this themselves or hire outside practitioners. An attorney/mediator can also prepare documents that are relevant to the divorce agreement, such as transferring the home, drafting enforceable legal “buy out” documents, penalty free pension divisions and matters of this nature.