Frequently Asked Questions About Divorce and Family Law Mediation
- What is divorce and family law mediation?
- What are the benefits of mediation?
- Will I have to obtain independent counsel before, during or after the mediation process?
- Will I ever have to appear in court?
- How do people typically feel about their experiences in the mediation process?
- How can I get more information about divorce and family law mediation?
Divorce and family law mediation is a form of alternative dispute resolution. The process is nonbinding and highly efficient. It is often a desirable alternative to resolving disputes through protracted, contested litigation in our overburdened court system.
In mediation, the parties enlist the assistance of a neutral, third party mediator to assist them in understanding and negotiating the necessary terms of a fair and reasonable resolution of the problem at hand.
Parties who choose to mediate their divorce and family law disputes vary in terms of their status and circumstances. For example, spouses who seek to dissolve their marriage through an uncontested divorce process may engage a mediator to help them negotiate the terms of the comprehensive, binding contract that the Judge requires before he or she will grant an uncontested divorce. That contract is referred to as a Separation Agreement. The terms of the Separation Agreement may include provisions regarding physical and legal custody of minor children, a parenting plan, child support, child-related educational and extra-curricular expenses, alimony, health insurance coverage and the payment of uninsured medical expenses, various tax issues, life insurance, debts and liabilities, and property division.
Former spouses or unmarried parents can benefit from mediation as well. Divorced couples or unmarried parents may become involved in parental disputes that occur after the divorce, or after a Judge enters an initial decision on parenting issues. Disputes like these may stem from among many possible issues, including one party's desire to change physical and/or legal custody of a minor child, one parent's efforts to relocate and remove a minor child from Massachusetts, requests to increase or lower child support payments, and demands for contributions toward the payment of college or medical expenses. Divorced couples may find themselves facing changes in circumstances that warrant a modification to a prior alimony or spousal support order. One party's needs may increase. Another party's ability to pay may decrease. In any event, mediation in these particular contexts offer clients an alternative to pursuing contested contempt or modification actions to enforce compliance with a prior Judgment, or to modify the prior Judgment and obtain a new one in light of life's changes.
Mediation empowers clients to resolve their issues on their own. It enables them to take ownership of, and pride in, their own agreement. It provides them with the opportunity to make important personal decisions independently, without interference. Through mediation, clients can accomplish dispute resolution in a private, confidential setting. They can negotiate and formulate their own terms of agreement with the assistance of a impartial mediator, who is there to educate them on the issues that they must consider, facilitate communication between them regarding those issues, assist them in coming to an agreement on those issues, and then draft and incorporate the terms of their negotiated agreement into a binding contract that a Judge will ultimately approve. By engaging in the mediation process, clients can move away from high-conflict, contested relations with one other. Instead, they can choose to negotiate and come to agreed-upon terms. They can enlist an experienced, neutral mediator to create a roadmap for them, to point out the obstacles and pitfalls that they may encounter, and to provide them with the tools of a neutral setting, knowledge of the law, improved communication, and a comprehensive written contract to guide them for years to come.
Parties may find the assistance of their own counsel expedient at any stage in the mediation process. Remember that the mediator is a neutral, third party facilitator and does not represent the interests of an individual participant. Some clients prefer to retain independent legal counsel, and consult with their lawyers prior to attending mediation with an impartial mediator. In that case, the clients may attend mediation with a preliminary understanding of the process, their respective wants and needs, and insight on the terms of a fair and reasonable agreement given the facts and circumstances of their particular case. Clients who have retained their own lawyers early in the process may want to attend mediation with their attorneys present. Sometimes clients will retain independent legal counsel toward the end of mediation, after the mediator presents the clients with a written agreement that incorporates the terms the parties negotiated. By having an opportunity to review the agreement with independent counsel, usually retained to advise the parties on their rights and obligations in light of the negotiated agreement, each party can later represent to the Judge at the uncontested hearing that they have been sufficiently informed of their rights, and that they have voluntarily entered an agreement they deem to be fair and reasonable.
However, frequently mediation clients choose to forego the opportunity to retain and consult with independent counsel. Under such circumstances, having at least been given the opportunity to review the agreement with independent counsel, upon the client representing to the Judge that they have read the agreement, understand its terms, and believe the terms to be fair and reasonable, the Judge should approve the agreement, and will not require prior review by independent counsel. Once again, the client gets to choose his or her own preferred course of action.
Upon executing a mediated agreement, clients will usually be required to attend a quick, uncontested hearing before the Judge, at which time the agreement is reviewed, and, if approved, incorporated into the Judge's Order or Judgment. At the uncontested hearing, the Judge will read the clients' agreement, determine whether it is fair and reasonable on its terms, and determine whether the parties have entered the agreement freely and voluntarily, having been fully informed of their respective rights and responsibilities. By appearing in court with a mediated agreement, clients can avoid significant delays.
Mediation is not for everyone. A party may have no choice but to resort to court procedures for the resolution of hotly contested divorce and family law issues. However, there is a broad consensus among professionals that parties who choose to pursue mediation are very often pleased with the process and its results. Mediation works in a high percentage of cases. Even when it does not succeed in resolving all issues, the parties often gain some benefit, for instance, the independent analysis of a neutral expert and/or a narrowing of the unresolved issues.
Partners Steven E. Gurdin and Jeffrey A. Soilson lead our divorce and family law mediation practice. They are highly experienced both acting as mediators and in representing individual clients in the mediation process.
Notice: This article is intended to provide useful general information regarding divorce and family law mediation, but it is not intended to provide legal advice. Every situation is unique. You should seek the advice of counsel to answer any specific questions that you may have regarding divorce or family law mediation.