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.

First things first: Massachusetts is an equitable distribution state.  Some states are community property states, in community property states (California) all the income and property earned and acquired during the marriage is split 50/50 among the partners.  In common-law states (well, state – only Mississippi) the partners each keep property to which they hold legal title, and only property titled jointly is subject to split.

So what does equitable distribution mean? All property, regardless of when or how  it was earned or acquired is subject to equitable distribution – to being diveded in a divorce.  It does not matter whether you bought something before you were married, or inherited it after, everything goes into the big pot. 

In Massachusetts, Chapter 208 is the statute that speaks to divorce.  Section 34 of Chapter 208 speaks to the division of property and alimony.  Equitable does not mean equal – it does not mean 50/50, it means fair or just considering the circumstance.  So what does the court look at when considering what is equitable?

* the length of the marriage

* the conduct of the parties during the marriage

* the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties

* the opportunity of each for future acquisition of capital assets and income

* the present and future needs of the dependent children of the marriage

* the court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit

The court has discretion and can decide how much weight to give to each of these factors, so there is plenty of flexibility given to the judge.  This is why I am an advocate of prenups, as well as of mediation, or collaboration  in divorce.  A lot of discretion is given to judges who do not know your family.  These tools allow you to decide whats best for your family instead of a judge.  More on this in the next post in this family of post.