Divorce is difficult, even when the parties agree they need to part ways. In many instances, being served with divorce papers is a surprise. Whether it is planned or not, the issues that need to be addressed are the same. Financial considerations including the distribution of assets and future support, such as alimony, as well the nature and extent of each spouse’s involvement in raising the family are usually the primary areas of dispute. Most people want the process to end as quickly and inexpensively as possible. While mediation is a good option in some cases, it is important to understand the process, the cost and the limitations.
Mediation is referred to as a method of alternative dispute resolution (ADR). In the divorce setting, mediation is a way to reach an agreement without the necessity of going through a formal court process with a judge. The mediator, also known as the “neutral” does not legally represent either party in the divorce.
While the idea of reaching an agreement without having to go through a court proceeding sounds very enticing, it does not guarantee the best results for the individual parties. It is important to understand who can be a mediator and what obligations he/she owes to the parties in a divorce. First, a mediator is not an advocate, like a lawyer. The mediator’s job is to help the parties reach an agreement, but not to give either of them legal advice. Second, a mediator need not be a lawyer. Although many mediators are lawyers, this is not a requirement. Third, although Massachusetts does not presently require a mediator to have any specific training or license, many have a minimum of 30 hours of training to ensure that their work product is treated as confidential.1 This training is also required for any mediator that works in the court system. Fourth, whether the individual parties understand their legal rights is not the job of the mediator. Fifth, a mediator is not under any obligation to ensure that the agreement fairly represents what each party may be entitled to under the law.
There is no set timeframe or cost associated with mediation. Unlike a court process in which a judge sets a schedule for future court proceedings, the mediator can only suggest an outline as to how the process should proceed. Usually, the more complicated the issues, the longer the process will take. Likewise, the fees associated with mediation typically reflect the complexity of the matter involved. Some mediators charge a flat fee for their services, while other charge an hourly rate.
Whether mediation is the path to pursue to reach a resolution in a divorce will largely depend on how well the parties communicate with one another, the complexity of the issues involved, the level of confidence each has in the other being truthful, and whether each party feels he/she has an equal standing. Cases that involve issues such as domestic violence, child abuse, withholding of financial information or an imbalance of power between the parties typically are not suitable for mediation.
To determine what course of action is right for you, contact the lawyers at Carter DeYoung, who specialize in divorce law and mediation services.
1 M.G.L. ch. 233 Section 23C provides that the case file and other work product of a “mediator” is confidential. However, this provision applies only to a “mediator” who has at least 30 hours of training as well as other professional experience or membership in an organization that holds the mediator accountable to certain ethical standards.