Arbitration vs. Mediation

In arbitration, parties make arguments and present evidence to a a neutral arbitrator who makes a decision. Often the decision is binding. And, as was widely reported  a the New York Times piece on arbitration, In Arbitration, a ‘Privatization of the Justice System’, many times arbitrations are binding and not appealable.  Many contracts that consumers enter into every day from cell phone contracts, credit card contracts to contracts for services, now include binding arbitration contracts.

Role of the Divorce Mediator

The Mediation Process

As the mediator, there a number of things going on in my head and on a number of levels. I am trying to assess the participants and the dynamics. I look at body language, tone of voice and their general demeanor at the mediation. It is my job to determine if there is a power imbalance and if so to address it. It is also my job to make sure that each party has the same basic level of understanding and knowledge. If not, I suggest ways that this can happen. Sometimes I suggest experts or outside people that one of the participants can consult to get up to speed.

Wrapping up the Mediation Process

Wrapping up the Mediation Process

Once the parties have reached an agreement, if the parties are not using attorneys, I send the clients a packet which includes all the court forms and financial documents they will need to file with the court and a very specific instruction manual about the court process and how to file the divorce.   I will meet with clients fro one final meeting in which we review the court papers, instructions for filing and appearing in court, review financial statements to make sure they are accurate and prepared properly.

I review the agreement to make sure both parties fully understand and agree to the provisions and I give clients instructions about signing the agreement and filing the paperwork with the appropriate court. I cannot notarize the agreement for my clients.

If necessary I will meet with the parties or speak with them on the telephone to answer questions about the court process.

The Divorce Agreement and Lawyers

The Agreement

Once the parties have reached an agreement on most or all of the issues in their divorce, I will draft a proposed agreement. Depending on the complexity of the agreement and the level of conflict, there may be some revisions of the agreement at subsequent meetings. When there is a complete agreement I will draft a final divorce agreement. Interestingly and somewhat confusingly, this final agreement is called a "Separation Agreement".

Massachusetts Divorce in a Nutshell

The process of divorce can be an extremely difficult and traumatic experience, emotionally and financially. To add to that, divorce necessitates decisions about almost every major aspect of your life including housing, employment, your children, health insurance, retirement taxes, etc. In fact, it is hard to imagine other times in one's life when a person has to make so many major life decisions, often while in a state of depression, anxiety, shock and/or anger.

Even if you are proceeding with a mediated divorce, understanding the divorce process and options for resolving your divorce is at least one step towards making the divorce process easier. What follows are some facts and information that will help you get the lay of the land if you are going through or contemplating a divorce and considering mediation.

Divorce Mediation Behind the Scenes: Initial Contact

First Call

Typically, one of the parties calls my office asking about the mediation process. During this call I will answer many of the basic questions about mediation and will make sure that there is no conflict of interest. In order to maintain neutrality and the appearance of neutrality, it is essential to make sure that there are no prior business, social or client relationships between the parties and the mediator which might affect the mediator’s neutrality.  If there has been a prior relationship the parties and the mediator will have to determine if proceeding with the mediation would be appropriate.
Assuming both parties are interested, I set up an initial free consultation. I make sure that the party calling for the appointment calls his or her partner and I have them confirm the first appointment. These calls are usually fairly short and limited to obtaining identifying information.

First Mediation Session and Beyond..

First mediation session

At the first session I explain to the couple that I will give them a list of issues they will need to cover and will help them make their way through discussion of these issues. When appropriate I provide them with information that might be helpful in resolving their issues. I will also point out issues or concerns, such as the tax ramifications of their tentative agreement. Often these are things that they had not considered and might affect their agreement. I will sometimes suggest that they consult with someone else if there is an issue that is outside of my area of expertise (sophisticated tax planning for instance).

Divorce Mediation Cost Savings

Divorce mediation saves money. In many divorces, couples are already stretched beyond their financial means by now having to support two households instead of one. Mediation allows the couple to avoid the high cost of divorce litigation in the following ways:

Goals of Divorce Mediation

The goal in divorce mediation is to provide clients with the information and process they need to reach an informed decision about their divorce that conserves their financial resources, minimizes anxiety and increases rather than decreases communication. This is accomplished in the following ways:

The mediator provides clients with information about Massachusetts divorce law.

The mediator provides clients with a detailed list of the issues they will need to address in their separation agreement.

The mediator meets with the clients together and helps facilitate communication.

The mediator provides clients with a detailed packet of court documents and forms that they will need to file their divorce in court.

The mediator provides clients with a detailed letter at the end of the mediation explaining what happens in court, what the judge will ask, where to go, what to file  and what to expect.

The mediator will draft a divorce agreement for the clients when they have reached an agreement which they can take to court and present to the judge.

What is Divorce Mediation?

Mediation is a process in which a third party neutral works with two or more people to help them reach resolution on issues or conflicts that may exist between them. In divorce mediation, the mediator works with the divorcing couple to help the couple reach a resolution on the various issues in their divorce. The term "mediation" encompasses various styles of mediation ranging from transformative to directive. The varying styles often have to do with how much the mediator will interject or offer his or her own opinions to the parties. Typically, in a divorce mediation, the mediator will not offer his or her opinions and will not give advice to the participants. However, there are divorce mediators who not only offer their opinions but also actively negotiate between the parties to attempt to work out a resolution. This is sometimes called "conciliation" or "case evaluation." It is important for a couple engaging in the mediation to know which style the practitioner uses.

In the more traditional divorce mediation, the role of the mediator is to facilitate a dialogue between the parties and to insure that they have sufficient information, legal, financial etc., to make an informed decision and agreement. The mediator can provide the parties with legal information. This is distinguished from legal advice. Giving legal advice endangers the mediator's neutrality. In a typical divorce mediation, I provide a lot of legal information but cannot give my mediation clients legal advice

Why Mediation?

Why Mediation? 

More than 20 years ago  I reached the conclusion that the litigation model is not particularly well suited to dealing with one of the most difficult and traumatic times for people. During a divorce, people are often dealing with every major aspect of their life while going through divorce. The problem however is that there are many people vying for the judge's time and energy. In turn the judge has very little time to hear and fully understand the litigant's situation. The pace and timing of the client's divorce is guided by the court's schedule and judge's availability. This often leads to long delays. There is also very little predictability when going to court. How a case turns out may very well depend on who is the judge, who the lawyers are, the particular relationship between the lawyers and a host of other factors which are outside of the client's control. Secondly, litigating a divorce, particularly for clients who are middle class or low income, is extremely expensive. Most lawyers require significant retainers to commence the case. One trip to court can use up a significant chunk of the retainer.

Typically, clients appear in court with many other litigants and spend several hours waiting to see the judge. Mediation is much more efficient and much less expensive. Litigation encourages more animosity and less communication. The contested divorce will undoubtedly involve attempts to discredit the other party. Particularly when there are children involved, the litigation system can have a devastating impact on the children as a result of the winner take all attitude. Unfortunately there is rarely a winner. Usually, everyone loses, including the children. Mediation encourages communication, cooperation and listening. Mediation focuses on brainstorming of ideas for mutual gain rather than destruction of the other person. Mediation highlights the fact that the two participants will remain connected for the rest of their lives through their children and thus must find a way to continue to work with each other in an effective and respectful manner. Unlike litigation, mediations occur behind closed doors and are not open for the public to see.