Sandwich, MA 02563
Patrick Morris, Esq.
DIVORCE MEDIATION: WHAT IS IT AND HOW DOES IT WORK?
Simply put divorce mediation is a process in which you and your spouse, with the assistance of a neutral mediator, discuss and settle your divorce or family matter, without the need for lawyers or fighting in Court.
Mediation has many advantages over traditional divorce litigation. In a traditional divorce both parties have lawyers whose job it is to advocate for and to advise their client. Typically each lawyer will demand a retainer (up front money) of from $3000 to $5000 to start the case. They are trained in the “adversarial system.” The theory is that if each lawyer “fights” for their client that the result will be fair and end up somewhere in the middle. The problem with this theory is that the results are seldom fair. Lawyers are not equal; the parties do not have the same financial resources to pay the lawyer; judges differ on many issues. While there is a place for the adversarial system, in many cases it is outdated.
After 22 years of being a practicing lawyer/advocate using the system described above I can tell you it is wasteful and inefficient. I can also tell you that the result of a mediated divorce will be extremely similar to that of a court fought divorce. I can tell you this because I have seen it myself hundreds of times. What is the difference? The simple answer is cost. The financial and emotional cost of the court fought divorce is easily 7 to 8 times more expensive than that of a mediated divorce.
When people come in to see me regarding representation for a divorce, they almost always say the same thing: “I want this to be as amicable as possible,” and “I want this done as soon as possible.” Mediation can accomplish these ends. Litigation is the exact opposite. It is not amicable, and it is not fast. A litigated divorce will take 6 months to 2 years to complete. Mediation will take 2 -3 months from start to finish.
Financial expense: On an average a mediated divorce will cost a total of 2000-4000 total for both parties. A traditional divorce will cost each spouse $10,000 to $20,000. These are real numbers. I know because I have done both. Isn’t that money better spent on your family than on lawyers?
THE MEDIATION PROCESS
The process usually unfolds in the following way:
At the initial interview I explain the process to the parties, and answer any questions they may have. The parties are informed that mediation is VOLUNTARY AND CONFIDENTIAL. They are further informed that I am happy to provide them with LEGAL INFORMATION regarding divorce. The concepts of child custody, parenting time, child support, alimony, division of assets, division of debts, what will happen to the house- these are all explained. I make a point to show the difference between legal information (which I am allowed to explain) and legal advice (which I cannot provide.)
The parties are given an opportunity to ask whatever questions they may have. I want to have a dialogue with the parties. In mediation THEY discuss and decide all of the issues regarding their divorce. I am there to guide the discussion, answer questions, and to help break impasses.
A frequent question is price. What does it cost? This is no secret. Please see information regarding the mediation cost under the “fees schedule section.”
This is usually quite brief. I need a snapshot of the party’s situation so that I can assist the parties throughout the mediation. I ask the following:
Where do they live? How long is the marriage? Are they still living together or are they separated? Do they have children? If so, names and ages.
Next is a brief picture of their financial situation: Incomes of both parties, what do they do for work? I then ask about assets- what do the parties own of significant value, and get an estimate of the value of these assets, and lastly I ask about debt- do the parties have any significant debt, and the extent of the debt.
Now it is time for the parties to go to work. I generally work from a checklist of items which need to be decided in any divorce. My job is to guide the parties from issue to issue, and help the parties decide those issues when my assistance is necessary. The HUSBAND AND WIFE do the heavy lifting here. They discuss and decide the issues with each other. I don’t decide anything- this is their mediation and their future: THEY DECIDE.
Most mediation sessions take about 2 hours. It can be more or less depending on how it is going. When a session is complete we make an appointment for the next session (usually the following week.) Most mediations take 2-4 sessions to complete the process.
Now it is time for me to go to work. My staff and I complete all documents required by the Court. The most important document is the “separation agreement.” I draft this myself. It specifies all the decisions the Husband and Wife have made to allow their family to live post-divorce. These documents are in “draft form”. They are emailed to both parties with the advice to “review carefully” and to have independent attorneys assess the agreement to ensure it is fair to each party.
After revisions have been made in the separation agreement, the parties come in for a final time to sign all necessary documents. Once this is complete I congratulate the parties for completing the mediation. Finally I file all documents with the appropriate court, and obtain a Court date for a final divorce hearing.
The final step is for the parties to attend a short (5 minute) Court hearing at which time the Judge approves the agreement. The mediator does not attend this hearing as he does not represent either party. The divorce will become final 120 days after the Court hearing.