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.

This is a good time to interject that this is my little sister, she’s an adult, but she’ll always be my little sister.

“Is there a divorce license? what is the process and you know… cost of a divorce?”

Shes not married, shes still a college student, so right about now I’m in the tiniest bit of panic… my mom is out of town, so its my job to talk her out of whatever shes planning.  The good news is she was just curious, shes not looking to marry and divorce some guy the family hasn’t met yet, or anything.

When I explained the filing fees, attorney’s fees, and process she asked “why do they make it so easy to get married if its such an expensive ordeal to get divorced?”  It feels to me that this question is posed pretty often out there, I’m sure we’ve all heard someone comment that such a consequential move should be made harder – maybe classes, waiting periods, etc…  I answered that a divorce is attempting to sort out property rights, inheritance rights, parenting rights, and many other issues that do not need to be (but should be) sorted out before getting married.  Its like any contract, pretty easy to get into – just sign on the dotted line.  However, like most contracts, hard to get out of – just litigate/mediate/arbitrate every issue. 

After that call I spent a lot of time thinking about how such a simple question really spoke to so much.  If getting married is tying the knot, getting divorced is certainly untying an often complicated knot, and as we all know from tying our shoes, tying a knot is much easier than untying it.

Her question inspired me to write a series of posts that I hope will clarify all the questions that were included in such a simple question:

What does marriage mean in Massachusetts? We must first understand what marriage means to understand anything else.  For example, what rights and responsibilities does it create?

After we have an understanding of marriage, we’ll get into divorce.  Here we’ll understand how those rights and responsibilities get sorted out in Massachusetts.  Under divorce, we’ll get get into some of the options, litigation, mediation, cooperation, etc…

Lastly, we’ll take a look at prenuptial agreements, post-nuptial agreements, and other tools available to families to sort out these issues on their terms, and not the terms of a probate and family court judge. 

Her question inspired me because it really illustrated why family law can only be practiced in a holistic manner, and why I sit at the kitchen table with my clients ( I do have a kitchen table in my office, or can come to their kitchen table), to make sure they understand every little piece of what we are doing, and how it affects their family.  It illustrated this point well because you can only understand divorce if you understand marriage.  You can only understand prenuptial agreements or mediation if you understand marriage and divorce. 

I want to thak my sister Adrianna for inspiring this series of posts, I hope reading it help you understand the issues.