Untying the Knot: Mediation

My sister asked me a simple question about how divorce works in Massachusetts, this got me thinking about how the only way to give a complete answer is to think about it holistically.  The only way to understand divorce, is to understand marriage, and mediation, collaboration and prenuptial agreements can’t be understood until you get the other two. 

Today we’re talking about mediation. 

So what is Mediation? It is a non-adversarial process for resolving disputes (in this case, divorce).  The mediator is a neutral third-party, she does not make decisions (like a judge or arbitrator would), but rather creates a space and provides guidance so the parties can communicate and come up with the best solution for their family. 

In divorce, if you can’t come to an agreement, the judge decides for your family, from when you will see the kids and for how long, to when you will sell your house.  Even if you do manage to come to an agreement before trial, you often hear that if no one is satisfied, you’ve reached a good agreement.  That does not sound like a good agreement to me.  Don’t get me wrong, the court system is often the best or only way for some families to reach a resolution, but when your family can manage otherwise, mediation is a great way to go.  Research has shown that couples who resolve their divorce through mediation instead of litigation have a higher rate of satisfaction and compliance.  My professional guess is that this is because it is your solution, not some judge’s solution.     

Mediation might be right for you and your partner if a) you can each assert your own needs b) you can consider the needs of your partner and c) you’re both committed to work toward an agreement that works for both parties. 

What can you expect in mediation?

Mediation is voluntary,  if at any time the process is not working for you, let the mediator know.  If the process is not going to work for your family, then you can stop.

In Mediation, you can still have an attorney represent you.  You can have an attorney attend the mediations, or you can simply consult with her as the process progresses, or just hire her for the limited task or reviewing your final agreement and giving you an opinion.  That’s the beauty of mediation, it is flexible so you can do what works for you and your family.  Often, divorce mediators are also lawyers.  This is helpful because she can help you understand the law, and what Massachusetts’ plan is for your divorce.  However, in this role, the mediator is not an advocate for you – remember mediator’s are neutral third parties.

The mediator will help you define what the issues are you need to settle, gather the information necessary to have an informed conversation about those issues, analyze the information.  The she will take you through a series of steps to create your final agreement.

Next we’ll talk about prenups.  Like mediation, they can help you make the decisions that are right for your family, rather than  submitting your family’s fate to the courts.