Conflict Resolution:

Divorce Mediation

 

WHAT IS DIVORCE MEDIATION?

Divorce mediation is a process that divorcing couples can use to negotiate the terms of their own divorce. In Massachusetts a couple seeking divorce needs to present a Separation Agreement to the court. A couple can hire attorneys to negotiate or litigate this agreement, or they can use mediation to design the agreement themselves.

Mediation helps couples make decisions about future plans concerning children, finances and property. A mediator is a trained professional who assists parties in their own negotiation without making decisions for the parties. Rather, a mediator assists parties in negotiating their own agreement. At The Negotiating Table, divorce mediation is conducted with two mediators, bringing balance and additional experience into the process.

Divorce mediation requires the active participation of both parties, who meet with the mediator together. The goal of mediation is a fair outcome created and accepted by both members of the couple. It is a process that seeks to close the marriage relationship as amicably as possible. Divorce is a complicated time for the people involved. While divorce mediation is not therapy, a mediator can help divorcing couples come to agreements despite high levels of hurt, anger and confusion.

Divorce mediation is a non-adversarial means to resolve issues raised in a divorce or legal separation. Mediation is an alternative to litigation. Mediation avoids the adversarial system of divorce, during which time the most personal matters of people's lives are handed over to a court for judgment. Mediation can be used by couples at any stage of the separation and divorce process - even couples who have previously divorced through the court system and wish to resolve new problems.

Mediation lowers the high financial and emotional costs associated with litigation. Couples have an opportunity to share their story with each other, to explore creative options, and to take control of the outcome of their disagreements. If the agreement is not satisfying to all participants, the couple still has the option of litigation.

Divorce mediation is 100% voluntary. Either one or both of the parties can request the process to end at any time. In addition, both parties are encouraged to consult an attorney during and after the process. Before any agreement is finalized, both parties are encouraged to review the written agreement with separate counsel.

THE PROCESS OF DIVORCE MEDIATION

In divorce mediation, divorcing couples, with the assistance of the mediator, review all of the issues they need to address in their Separation Agreement , including real and personal property, division of asset and/or liabilities, child support, spousal maintenance, tax considerations, living arrangements for children, and parenting responsibilities.

How To Start Divorce Mediation?

Most often one spouse or family member calls The Negotiating Table and inquires about mediation. The time spent on the phone is a free consultation for the couple or family members in which your questions regarding mediation are answered and during which you can decide whether to try to mediate your divorce.

Once you decide to enter into mediation, each person is asked to complete a questionnaire which produces the information necessary for discussion and completion of an agreement. Mediation sessions are set up with the mediators and the parties to work together toward agreement. Depending on the number of issues involved, mediation can be completed in 1 to 12 sessions, though 3 to 5 is typical.

What Happens in Divorce Mediation?

There may be quite a few complex issues for the couple to resolve in order to complete their divorce. The mediators help identify and understand the relevant issues by taking the couple through a step-by-step process that addresses each issue in turn.

The result of mediation is a plain language Memorandum of Agreement which includes all decisions made by the couple. Independent lawyers chosen by each spouse review the Agreement to assure that each person's individual interests are protected. From this document one of the attorneys drafts the papers that will be presented to the Court.

Mediators are prepared to coordinate relationships with attorneys, accountants, appraisers, counselors, clergy or other advisors. Mediators do not make decisions, provide therapy, give legal advice or perform legal services for the divorcing parties.

WHY USE DIVORCE MEDIATION?

Mediation is advantageous in divorce cases because it gives you personal control over the settlement, and it is less time consuming and expensive. In the traditional divorce process, the husband and wife retain separate attorneys to handle the matters of their divorce and to provide legal advice. An attorney cannot represent both husband and wife, therefore, separate counsel is required. If the you are unable to resolve some issues, the process can become lengthy and expensive, costing as much as $15,000 in some cases.

If a settlement is not reached, the case could result in a trial. When this happens, decisions are literally taken out of your hands. A judge decides the outcome. Even if the case does not go to trial, the ordeal of trying to reach an agreement in an adversarial environment can leave participants emotionally and/or financially unable to address post marital issues in a positive manner. The post marital issues could include co-parenting decisions, the ability to communicate with an ex-spouse, and any unexpected problem which could affect the original divorce agreement, such as job loss, health insurance loss, or serious illness.

Divorce Mediation Is Generally Less Expensive Than Traditional Divorce

Divorce mediation is less costly than the system of adversarial litigation for primarily the following reasons:

  1. Traditional divorce requires each member of the couple to negotiate through his or her own attorney. This process is often slow and inefficient, with a great deal of cost involved simply in communication between the attorneys and between each attorney and client. In mediation, the active involvement of the couple ensures more efficient communication and decision-making. Each spouse is still encouraged to retain an attorney to consult on legal issues and review the agreement, but mediation requires much less of the attorney's time.
  2. Mediation provides a single, reliable source of information, thus eliminating conflicts before they arise and the cost of dealing with those conflicts.
  3. Studies show that couples who have worked together through a mediator are over three times more likely to uphold the terms of their agreement than couples who have divorced through the adversarial system. This reduces or eliminates the need for continued litigation after the divorce is completed.

The difference in cost can be dramatic. Mediated Settlement Agreements can cost less than 10% - 25% of contested divorces.

Mediation is Easier on Parents and Children

Divorce mediation generally results in a reduction of hostility between the participants and less trauma for the children involved. Each parent has an opportunity to be heard and to share his or her story. Divorcing people with children are actually restructuring their family, and even though they are divorcing, they will always be parents to their children. Mediation helps parents find a way to maintain a healthy parenting relationship, while changing the shape of their personal relationship with each other.

When parents communicate better, children benefit. Parents are role-models for their children, and children imitate what they see. If children see good communication between their parents, they will learn how to communicate better. Statistics show that children of divorce adjust better to the new family structure when there is cooperation between their parents.

Mediation Can Help Couples Reach Agreement Even If They Are Angry

Mediation is not counseling or therapy and the mediator will not provide such services. The mediator does not encourage or discourage a couple's decision to separate or divorce, nor does the mediator try to figure out what went wrong with the marriage or help the couple find reasons to stay together. Mediators are trained to create a productive process in which people can make the decisions they need to make in the face of the anger and hurt they might be feeling.

Mediation is Flexible

Mediation can be used for an entire divorce agreement or just some of the issues. For example, if a couple needs mediation to resolve the parenting schedule issue only, mediators can be of assistance. The same holds true for any issue appearing in the divorce agreement. Mediation can occur at any point in the process of divorce, and even after the divorce is complete to help resolve new issues that may come up.

OUR EXPERIENCE

The Negotiating Table has been providing divorce mediation services since mid-1999. Moshe Cohen, President of The Negotiating Trainer is a trained, experienced divorce mediator as well as a general mediator. In addition to mediating divorces through The Negotiating Table, he serves on several mediation panels and mediates through the courts.

At The Negotiating Table, divorce mediations are conducted with two mediators, to create balance with the couple and provide divorcing couples with the benefit of the mediators' diverse experience and skills. We work closely with other independent, experienced mediators in the Boston area to best match the needs of the couple on a case by case basis.

TO SCHEDULE A DIVORCE MEDIATION OR GET MORE INFORMATION

Please call The Negotiating Table at (617) 577-0101 or email info@negotiatingtable.com. There is no charge for the call.

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