Divorce Mediation / The Benefits And How It Works
Many people contemplating divorce don’t want the stress and cost associated with litigation. Divorce litigation can be costly, particularly if there are serious issues in controversy, such as child custody or the income of one or both parties. Divorce mediation can be a great option because it makes an adversarial process constructive. Instead of building cases against each other, the mediator’s role is to get the parties to start working towards solutions. This constructive approach to divorce resolution has several key benefits, the most notable of which are as follows:
Cost of Mediation. While low cost divorces are possible, the risk of costs getting out of control is real. Most divorce and family law lawyers ordinarily charge an hourly rate for their services. In every case there is a bottom threshold for costs because it generally takes the same amount of time for the lawyer and staff to draft the complaint, arrange for service, work with the client to complete financial disclosure, and go to court. But, whenever there are additional court appearances necessary to further the case, costs can increase significantly. Unfortunately, our Massachusetts Probate and Family Court system tends to keep lawyers waiting for hours for their cases to be heard. That’s particularly the case when the issues are complex and contested. To make things worse, parties sometimes escalate the litigation in an effort to increase the attorney costs of the other party. In a mediation, the parties ordinarily split the mediator’s fee and both have an interest in resolving the case efficiently.
Fairness of Mediation. One great part of mediation is that there is a third party, the mediator, who is working to find resolution to the case, without advocating either party’s position. Parties are free to attend mediation with or without lawyers, but ultimately, the mediator’s role is an unbiased one, identifying solutions beneficial to both spouses.
The Time it Takes to Mediate a Divorce. When you file a litigation, the procedural rules take effect and deadlines are set throughout the course of the case. That’s helpful in one regard because there’s essentially light at the end of the tunnel. The problem is that it’s a very very long tunnel. It’s common for cases to last 12-18 months between filing and trial and, candidly, the issues or facts don’t tend to change so much over the course of that time period. That means the case can likely be resolved now if the parties would just sit down and engage in a meaningful discussion. In a mediation, the parties can schedule the mediation to occur whenever convenient, which means resolution has a great chance of happening in the immediate future. The fact is, cases that mediate tend to resolve more quickly than those that do not.
How Does Divorce Mediation Work? On a fundamental level, mediation works by a mediator working with the two spouses to identify issues and potential solutions to which both parties will agree. The mediator then generally drafts the separation agreement, the parties sign, and the case is then filed and submitted to the court for final hearing. Each spouse always has the opportunity to retain a divorce and family law lawyer of their choosing, either to represent him or her through the mediation process or to simply counsel the party before and/or after the process on the party’s rights and obligations and the contents of the agreement.
How Does Divorce Mediation Work at Turco Legal? Every mediator has his or her own approach to mediation and we are no different. But, having participated in hundreds of meditations, we have developed an approach we feel best meets our clients’ needs, including maximizing efficiency, minimizing conflict, fostering a constructive environment, and providing a thorough and unambiguous settlement agreement, generally referred to as the “separation agreement”.
At Turco Legal, the mediation process starts with the first meeting, conducted by phone or in-person, in our Newburyport or Boston office, with the parties jointly retaining the firm and paying an initial retainer. The mediator gives the parties homework to complete and a date is set for the first mediation session, which is often the only mediation session necessary. Through the homework completed by the parties and the initial stage of the first mediation session, the mediator identifies the issues that require attention and resolution. The mediator also gains a sense of what outcome each party wants and how compatible or incompatible each party’s desired outcome might be with that of the other. The mediation may be conducted in one room with all parties present, referred to as a “joint session”, or the mediator may shuttle between two rooms with the parties separate from each other, referred to case “caucusing”. The decision to caucus is either parties’ or the mediator’s to make and is employed when physically separating the parteis raises the likelihood of resolving the case.
Many mediators take the approach of scheduling various shorter, two hour meetings to further the mediation, but our approach is to do fewer, longer sessions, aimed at resolving the case quickly. The reality is that momentum is an important factor in getting cases settled. When parties feel progress is being made, they tend to want to continue the process until complete. A common reason mediation stalls is because there is a lack of relevant information. A retirement account balance, for instance, may not be readily available. Many lawyers suspend the mediation in that scenario, providing the parties time to obtain the information needed. While sometimes unavoidable, we generally find this approach detrimental to the process because, one, it stops the momentum and, two, it is inefficient because it requires the parties and mediator to spend time recalling where everyone was at the conclusion of the prior session. Whenever possible, we work with the parties during the session to obtain whatever information possible to resolve the case and, when obtaining such information is not possible at the time, we partially settle all issues which can be resolved, thereby capturing the momentum and leaving less to be dealt with another day. Ensuring everyone remains comfortable, well fed, well hydrated, and clear-headed are top priorities. If there is any concern that a party needs more time to process proposed agreement terms, the mediator will recommend the parties take a day to contemplate the agreement before signing. Mediation is a voluntary process and nobody will make a decision settling your case except you and your spouse jointly.
How to Choose a Divorce Mediator. Choosing a divorce mediator obviously an important decision. There are some unquestionable truths about selecting the right mediator. You want your mediator to have experience and competence handling divorce and other family law cases with the issues present in your case. You want the mediator to have a reasonably good probability of resolving your case, so to do so, you need someone skilled in resolving these types of cases. That means comprehensive understanding and experience in dealing with the major issues of your case, whether they are financial issues, parenting issues, or both. Because the mediator will need the respect of both parties to resolve the case, you need someone who has an objective, constructive, compassionate and confident approach to resolving these types of issues. Finally, you want someone with a personality compatible with each spouse’s personality.
Mediate your Divorce Case First. In the grand scheme of things, attempting to mediate your divorce case before filing a litigation generally does not have much of a down side. Obviously, there’s an exception when there are issues of abuse or substance abuse in the case, but barring any emergency, mediation can resolve your case in a more appealing manner, not just resolving things now but setting the tone for any future relationship, which is always important when there are children or support orders involved. To schedule a mediation consultation at either our Newburyport or Boston offices, call us today at 978-225-9030.