What is Mediation?
Mediation is a voluntary and confidential process where the two sides to a dispute meet with a neutral party, the mediator, in order to come to a mutual agreement. The mediator is not a fact finder or a decision maker or even an advisor, but a facilitator who promotes understanding and communication between the parties. The mediator assists the parties in focusing on their future interests and developing options for settlement. The vast majority of mediations are successful, resulting in the execution of a binding agreement. The benefits of mediation include confidentiality, control of the process, efficiency and cost effectiveness.
Mediation is a confidential process. Marty Murphy, as a trained Mediator, has met the requirements of Massachusetts General Law, Chapter 233, Sections 23 c, which provides for confidentiality for all work product and communications with a mediator. Mediation sessions can take place in a private office rather than in a public courtroom. In a family law case, there are numerous times when parties would prefer to keep their discussions private as opposed to having them heard in open court. Financial affairs or personal indiscretions can be discussed in a private setting. This minimizes the negative impacts on other family members, especially children. Animosity and negativity typically surround traditional divorce proceedings, and in such an adversarial atmosphere children can often be drawn into the conflict and suffer the resulting consequences. A non-adversarial approach like mediation will more often bring a peaceful resolution without life-altering collateral damage.
Control of the process
Mandatory deadlines, complex guidelines, and broad judicial discretion in matters of property division, spousal support and physical and legal custody can provide heightened levels of stress for a couple going through one of the most traumatic processes in their lives. When a couple decides to use mediation or Collaborative Law to resolve the issues surrounding their divorce, some of the pressure is reduced because the individuals are participating in a process that doesn’t have to meet arbitrary deadlines. The focus is on finding the best options for the future.
At a time when everything else seems out of control, couples may want to consider an option that allows them a greater sense of control over the outcome. Many couples prefer to be directly involved in the crafting of their separation agreement rather than have the agreement negotiated by their attorneys or solely determined by a judge. This process can be empowering and result in a better agreement for both.
Finally, nothing is more important to a loving parent than the legal and physical custody of their child. Providing an opportunity to fully explore the best interests of the child in the opinion of the child’s parents is paramount. Mediation and the Collaborative Law process provide the best environments in which these decisions can be made.
There are countless dedicated and diligent judges, clerks and staff members working in the courts throughout Massachusetts. However, with the Trial Court facing another significant cut in the current year’s budget, there is only so much that can be done.
Overworked and understaffed courts have been more common in the last few years, and one can often find news articles detailing the loss of court personnel. Frustration abounds when clients and attorneys spend time waiting for their case to be called at court. These realities of the challenges facing the court system provide another reason for clients to consider alternatives.
By choosing a process like mediation, couples can avail themselves of the benefit of efficient scheduling of meetings and the use of independent and neutral professionals. At the Law Office of Martin Murphy, LLC, meetings can be scheduled at the client’s convenience, perhaps in the early morning or evening. Not only is money saved within the process itself, but also less time is taken away from work and daily commitments. Neutral professionals save the couple time and money by reducing the need for each person to obtain his or her own professionals who will require more meetings and hence more time and more money, thus costing more in future resources.
Mediators are trained to assist parties to better understand the underlying causes of their needs, and that can often help them move through a transition in a manner that keeps them from “getting stuck.” Mediators focus on solutions, not conflicts. Since Mediators cannot represent clients in any forthcoming litigation between the parties, it is in the mediator’s best interest as well as in the client’s best interest to be successful in the mediation at hand.
According to an article in the Wall Street Journal (June 6, 2008), the national average cost of a mediated divorce is less than $7,000 and of a collaborative divorce less than $20,000. This compares with nearly $27,000 for a divorce negotiated by rival lawyers and about $78,000 for a fully litigated divorce. Keep in mind that these numbers are national averages and are not necessarily an indicator of how much your divorce will be. However, they illustrate the cost savings that mediation and collaborative law can offer.
Divorces can be very costly. A couple considering divorce often has a grave and understandable concern over the cost associated with the process. By choosing a process that allows for efficient scheduling of meetings and the use of independent and neutral professionals, the couple will be best able to preserve their resources and provide for their families in the future.
One of the benefits of mediation is that it allows the parties to try out new strategies for communication. The most successful mediations prepare parties to have more effective communications in the future. This can be incredibly important in divorce situations where there are children or other extended family members involved. Mediation can be a very effective process for parties with child custody, property division or alimony disputes. For instance, families that have gone through divorce are still likely to experience events such as the wedding of a child or the birth of a grandchild. Parties who have participated in a mediation to resolve their divorce are less likely to have “burned bridges”. That alone may provide an opportunity for those future events to be the joyous occasion they are intended to be.
When is Mediation the Right Choice?
Mediation can work well for settling the vast majority of disputes. It does require that all those involved come to the process voluntarily and with a sincere intention to reach resolution. Mediation may be more challenging when one person has something significant to hide and is not willing to be transparent. It can also be challenging when there is a serious imbalance of power or a very high level of conflict. When some of these challenges are present, other neutral professionals such as a financial neutral may be able to assist in the process and help reset the power imbalance or provide communication strategies to reduce the conflict. Mediation succeeds when the parties in a case want to come to an agreement and when they prefer to do so in a confidential, cost effective process that provides them with a higher level of control over the outcome.
How does Mediation work?
The first step in deciding whether or not mediation is right for you is to make an appointment with our office for a free “Process Presentation,” where we will outline the entire process for you and explain how your particular case is expected to be handled. All of your process options will be presented so that you can make the best decision for you, your issue and your family. Contact us today to schedule your free Process Presentation.
Mediation and Fee Agreement
Once a couple agrees to begin mediation, they sign a Mediation and Fee Agreement with the Mediator that outlines the roles and responsibilities of the couple as well as of the mediator.
Mediation Friendly Attorneys
At this stage the mediator will suggest that each of the participants meets with an attorney who can help define the rules and laws that apply to the particular case. Mediators are neutral, so while they might help educate, they are not permitted to advocate. An attorney can help someone understand what range of options might be available to them given their particular facts. That knowledge combined with the interests of the parties is brought back to the mediation meetings and facilitates the development of options for the future.
At the initial mediation session, the process, communication protocols and ground rules will be outlined and the parties will have the opportunity to outline their goals for the mediation. Those goals will help set the agendas for subsequent meetings. Typically, the couple will discuss issues surrounding the division of marital assets, spousal support, child support, and often most importantly, their parenting plan. Sessions generally last about two hours. On average, a divorce mediation consists of between four and six sessions. In Massachusetts attorneys usually do not directly participate in divorce mediation sessions. They typically advise their clients outside of the mediation sessions and assist in the final review of the documents. This often provides for an efficient and cost effective process.
Homework may be assigned to the couple to be completed in between sessions. Examples of homework might include determining the market value of the family home, completing financial statements, or investigating childcare options. Successful completion of homework is imperative to make the mediation cost effective and efficient.
Towards the end of the process, the mediator will begin drafting a separation agreement memorializing the decisions of the couple. This agreement should be reviewed with each of the spouse’s respective attorneys. Any requested changes or alterations to the agreement can be discussed at the final mediation session.
Filing of Documents
The couple can then file the separation agreement and associated documents directly with the court either by themselves or with the assistance of their attorneys.