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Frequently Asked Questions

How is divorce mediation different than the traditional divorce model?

In traditional divorces both sides each hire an attorney who argues their respective positions in court.  Upwards of a year are often directed towards “discovery” of the other side’s assets, liabilities, income and expenses.  Much time, money and emotional energy are further expended obtaining “temporary” order of Court even as an elusive “permanent” judgment rests in the hands of an overworked, impersonal court system.

Trial dates are substantially backlogged and actual trials often stretch out over many days.

Even the notion of a “permanent” judgment may be misleading as either or both parties may file appeals or subsequent modification requests to the Court.

In a climate conducive to direct, honest communication, Divorce Mediation encourages divorcing couples to effectuate their own, mutually crafted agreement.

The mediator assists the parties to identify all issues necessary for inclusion in a written agreement for submission/approval of the Court.  The divorcing couple, together, make all the decisions.  The mediator assists them through any difficult moments that are a normal part of the mediation process.

Having negotiated and crafted their own agreement, mediating couples are more likely to be satisfied with the outcome and concomitantly less likely to file subsequent modification requests at Court.

By enabling couples to maintain a working relationship, Divorce Mediation also helps children overcome vulnerability to emotional distress attributable to the traditional, adversarial litigation model.

What does a divorce mediator do?

The divorce mediator’s role is to help couples explore options and obtain information in a setting that encourages open, honest communication.  A case agenda is developed specifically tailored to the parties’ situation.

The clients, together, make all the decisions.  The mediator facilitates the discussion, assisting both to understand each others needs and concerns.  In a natural setting (and with an absolutely neutral mediator), contentious issues can be addressed and resolved in a manner considerate of and consistent with both parties’ expressed positions and interests.

The mediator, where he is an experienced family law practitioner, may intervene to suggest compromises or tradeoffs that other couples have incorporated in their negotiations.  The mediator is also available to advise the parties how Massachusetts law is in conformity with their resolution of pertinent issues.

Lastly, the Divorce Mediation Center mediator, a licensed attorney, will incorporate the clients’ mutually crafted resolution of issues into a formal Separation/Divorce Agreement for submission and approval by the Massachusetts Probate & Family Court from which the parties will seek a judgment of divorce.

Both clients are always advised, prior to signature, each to have the document reviewed by their own respective attorney.

Why mediate?

For couples, capable of expressing their respective positions, seeking to do right by their children, willing to make full financial disclosure and amenable to reasonable compromises or tradeoffs, the answer is “Why not?”

The benefits of mediation include:

  1. It is private and confidential
  2. The parties speak directly to each other in an environment that encourages a frank discussion of issues
  3. Children are less likely to be embroiled in an emotionally painful conflict
  4. When divorcing couples craft their own comprehensive settlement, both parties are more committed to its’ strict enforcement, minimizing the likelihood of future court proceedings
  5. Divorce Mediation are usually concluded within 5 sessiosns;  contentios divorce litigation often consumes more than a year.
  6. The cost of divorce mediation normally runs between $2,000-$4,000; contentious divorce litigation can cost between $20,000-$50,000.
  7. The overwhelming majority of divorce mediations result in settlement.
What issues typically need to be addressed in divorce mediation for inclusion in a separation/divorce agreement, and what is a
separation /divorce agreement?

ISSUES TO BE MEDIATED

  • Identification of Separate Property
  • Division/Sale of Real Estate
  • Division of Marital Assets/Debts
  • Physical/Legal Custody of Children
  • Parenting Plans/Visitation
  • Child Support/College Expenses
  • Health/Life Insurance
  • Retirement Plans/Pensions/Annuities
  • Spousal Support

SEPARATION/DIVORCE AGREEMENT

A Separation Agreement is a written document that defines the terms and conditions of divorce to be incorporated into Judgment of Divorce to be decreed by the Massachusetts Probate & Family Court.

The Court will review the document to confirm that it is “fair” and complete, that both sides are satisfied with the other’s financial disclosures, that each understands it fully and has signed it voluntarily and finally, that each wish the Court to approve the agreement and incorporate it into the final divorce judgment.

Is divorce meditation always appropriate?

Each party must be willing to disclose fully all assets, liabilities, income and expenses.  Financial statement forms will be provided for each party to complete.

The Divorce Mediation Center will not accept cases where there is an active domestic abuse restraining order (MGL Chapter 209A).

Divorce mediation only works if both parties are willing to make the good faith effort necessary to resolve all issues attendant to divorce. 

Can mediation work for couples with dramatically opposing opinions about an equitable settlement, or for couples whose post-separation bitterness/acrimony has not yet abated?

Generally, divorce mediation is especially advisable in both of the above circumstances.  The alternative, contentious litigation, virtually guarantees an extended emotional and financial battleground without victors.

Mediation is not conflict free, but the successful management of conflict is a skill that facilitates resolution of radically contentious views.  Divorcing couples benefit from the realization that they still share common needs and concerns, that they can maximize resources to best provide for themselves and any children.

The mediator can establish ground rules that each participant alternatively speak and listen in order that their respective needs and concerns are voiced, that there is a clarity as to their respective incomes/assets/expenses and an understanding of their legal rights and obligations to each other.  They can then decide what are the parameters of a fair resolution.

In litigated divorces anxiety and a failure to listen contribute to misunderstandings and distorted notions of what is fair.  The divorcing couple are each susceptible to counsel that exacerbate conflicts at great financial and emotional cost, ultimately accomplishing in court that which long ago could have been resolved in a mediated divorce.

If one of the parties harbors wildly unrealistic expectations he/she would be encouraged to consult with an attorney before proceeding further with mediation.

Even when mediation does not result in a settlement, the process itself usually focuses the remaining unresolved issues for more expeditious attention by the court.

How private and confidential is the information disclosed during mediation?

Massachusetts General Laws Chapter 233 Section 23C and Supreme Judicial Court Rules on Dispute Resolution, Rule 9 mandate that all memoranda and other work product prepared by a mediator and any communications made in the course of mediation are confidential and not subject to disclosure in any judicial or administrative proceeding.

Further, the divorcing couple themselves may make no disclosures in any judicial or administrative proceeding of communications made in the course of mediation. Both parties are permitted always to consult with their respective attorneys, therapists and/or financial advisors.

The mediator will make no disclosure to any third person (including attorneys, therapists or financial advisors) unless both  parties  have signed a written authorization.

The mediator may disclose to appropriate authorities information obtained during the mediation concerning child abuse, the risk of serious harm to an individual or the planned commission of a crime.

All mediation sessions are private.  Although either or both participants may have independent counsel, no lawyers or any other third person may attend.

Is there any requirement that a divorce mediator be a lawyer?

No – at its’ historical inception many divorce mediators were therapists/counselors and there continue to be excellent non-attorney mediators.

Inasmuch as any Separation/Divorce Agreement must conform with Massachusetts laws and practices, it is advantageous that a mediator also be an attorney with extensive divorce/family law experience.

In certain limited circumstances some mediators may assist divorcing spouses, not only in the preparation of the Separation/Divorce Agreement, but also with the preparation of the joint petition for divorce.

Attorneys who serve as divorce mediators under no circumstances are acting as legal counsel for either or both divorcing spouses and will not appear at court.

What does it mean to be a 'Certified Mediator'?

THe Massachusetts Council on Family Mediation (MCFM), established over twenty-five years ago, sets standards to guide the practice of family mediation in Massachusetts.

All mediators in Massachusetts, regardless of their prior education/training/experience must attend a basic introductory course of classroom instruction (Rule 8, Supreme Judicial Court).

The designation 'Certified Mediator' is reserved by MCFM for those mediators with significant experience, advanced training and education. Applicants are subject to scrutiny by a panel of their peers and are subject to continuing recertification standards.

At this writing (February, 2018) there are only 33 mediators statewide to have achieved this distinguished recognition.

For more information about Massachusetts Council on Family Mediation, see www.mcfm.org.

What is the role of lawyers in the divorce mediation process?

The decision to retain counsel is entirely discretionary and may occur before, during or after commencement of mediation.  Usually lawyers do not participate in the mediation sessions.   At times issues may arise during mediation that would benefit from outside legal consultation.

If one or both of the parties harbor wildly unrealistic expectations he/she would be encouraged to consult with an attorney before proceeding further with mediation.

The Divorce Mediation Center advises all its clients, both spouses, to consult with a lawyer before signing the Separation/Divorce Agreement.

Does mediation cost less than a traditional divorce?

Yes, absolutely.

In the traditional divorce litigation model, each spouse retains his/her own attorney.  Although hourly fees may vary, it is not uncommon for each party to pay an initial retainer of $5,000 down against hourly fees ranging from $250-$400 per hour.  When the retainer has been exhausted, it must be replenished to assure continued legal representation.

Usually the attorneys will spend upwards of a year in “discovery”, i.e. obtaining information about the other sides’ assets, liabilities, income and expenses.  There may be written interrogatories, requests for documents and formal depositions under oath before a notary public.  If custody of minor children is an issue, there may be an appointment of a guardian ad litem and the need to present a plethora of witnesses at trial.

Often whole days are spent at court to obtain preliminary "temporary orders" pending final trial on the merits.

Trials themselves are often delayed and once scheduled, may stretch out over many days.

It is not uncommon that one or both sides may appeal certain aspects of the trial judge’s decision.  And, as a matter or right, either party may subsequently file for modifications of the judgment as circumstances require.

Can traditional divorces cost between $20,000 to $50,000 and sometimes more?   Yes.

Does mediation usually cost between $2,000 to $4,000?   Yes.

How much does divorce mediation cost?

The Divorce Mediation Center/James Landy, Esq. charges $325 an hour and a typical divorce mediation takes between 6 and 10 hours of time, including time in meetings, communicating by phone or writing, and preparation of the Separation/Divorce Agreement.

If the divorcing couple have already commenced communicating with each other about the issues to be resolved or have otherwise come to a partial agreement on their own, it would be reasonable to expect that less time will be necessary to finalize an agreement.

The Probate & Family Court itself charges a $215 filing fee for a “no-fault” joint petition for divorce.  Parents involved in divorce proceedings are required to attend a two session Parent Education Program at a further cost of $60.  This program is offered at numerous locations throughout Massachusetts.

There is no charge for the initial consultation.

Most divorce mediation sessions are scheduled in two hour blocks.

Addendum (2/1/2018) – Over the last seven years the total cost for mediation services has averaged $2,200. I don't charge for the initial consultation, which usually lasts two hours. Frankly, I don't understand how a "free half-hour consultation" can remotely provide divorcing couples with enough information to make such important decisions (mediation vs litigation, choice of mediator, review/prioritization of issues to be addressed).

The hourly fee may seem intimidating, but I don't waste time, you will have my full attention and the benefit of many years of experience/training. I acknowledge the emotional circumstances of our meeting, yet I assure you that a written agreement will be negotiated that honors your respective positions/interests during this difficult transition in your lives.