Divorce - Divorce Mediation - William R. Lasher, PhD

Divorce Attorney & Mediator
Holden & Worcester Massachusetts
DIVORCE MEDIATION

Mediation is an out of court process through which a divorcing couple works out the details of dissolving their marriage with the help of a facilitator trained in dispute resolution.  Mediators don't take sides or impose their own ideas.  Instead they explain divorce law and keep communication between the spouses focused on moving forward rather than on anger and recrimination over the past. 
Advantages of Mediation
Mediation has several distinct advantages over litigation.  The first is cost.  A mediated settlement is often as much as 90% less expensive than a traditional divorce in which each spouse employs a lawyer.
The second advantage is time.  Mediating spouses generally come to an agreement after two or three sessions spread over a few weeks.  Court papers are filed, and a final hearing can often be scheduled within a month.  The entire process can take as little as two or three months.  Litigated divorces typically take more than a year, and cases lasting two or three years aren't unusual. 
The third advantage of mediation is a reduced level of emotional trauma.  In most divorces the parties are angry and upset, and communication between them has become difficult.  When both sides go to lawyers, the atmosphere gets worse.  The lawyers square off like fighters in a ring, the spouses stop talking to one another entirely, and their relationship quickly goes further downhill.  The process is especially shattering to children whose emotional health tends to be damaged by visible conflict between their parents.
A mediator, on the other hand, explains the unfamiliar morass of divorce law, and gently guides negotiations toward a fair solution.  That keeps the couple talking to one another civilly and minimizes the anger and frustration felt by both sides.  Most mediation clients remain on friendly terms after their divorces. 
A fourth advantage of the mediation approach is that it tends to produce more satisfying results than litigation.  People are happier with mediated settlements, because they've developed the agreements themselves.  Litigated results can seem arbitrary, because they're developed by other people – the lawyers and perhaps the judge.

THE MEDIATION PROCESS
Every mediator has his or her own way of handling the process.  A summary of my approach follows.

Overview
The heart of a divorce is the Divorce Agreement, a contract that spells out the details of property division, support, and child custody, among other things.  Mediation involves negotiating an agreement that's satisfactory to both sides.  Once that's done the couple goes to court and files a Joint Petition for Divorce with the Agreement attached.  There's a brief hearing at which a judge reviews the agreement for fairness and asks each party a few questions before granting the divorce.

The Structure of Mediation
Mediation is basically a supervised negotiation in which the mediator makes sure the parties are familiar with the law and keeps them moving forward with the important issues of the case.  I’ve found that after an introduction, it’s best to structure the negotiation around the major issues that must be settled.  My agenda and some comments on process follows.

Introduction
The first session begins with a description of the mediation concept and process.  It's important to establish that success requires that the parties have open minds and a willingness to compromise.  Mediation cannot be successful if one or both parties insist having everything their way.  People sometimes think that will happen in litigation, because the judge will see that they are the "wronged" party and give them everything they want.  Mediators are careful to explain that this virtually never happens, and that the identity of the "bad guy" rarely matters in divorce settlements. 
At the end of my introductory remarks the divorcing couple has a choice.  They can start the mediation, leave and think about it for awhile, or reject the idea.  In any event, there’s no charge for that introduction.  Most of the time people choose to start immediately. 

There’s Usually No Need to Get Into Why
In Massachusetts most divorces and virtually all mediated divorces are granted under the No Fault theory (also called Irretrievable Breakdown).  Under that approach, neither party is singled out as being more or less responsible for the failure of the marriage.  In granting the divorce the court simply accepts the parties’ joint statement that the marriage isn’t working and that they have agreed to dissolve it.  The court’s focus is on the future which means the judge will be interested in the fairness of the property distribution, the adequacy of support and the welfare of the children as they grow up. 
This means that except in unusual cases, it isn’t necessary for the divorcing parties to get into why the marriage failed either with the mediator, with the court, or in the Divorce Agreement.  Although judges sometimes ask some background questions, the focus is largely on going forward with a fair and reasonable agreement. 

Incomes and Term of Marriage
In order to reach a fair and balanced agreement, it’s important to begin by establishing the parties’ incomes and how long they’ve been married.  Incomes provide the basis for any support or alimony payments that may be made by one party to the other. 
The term of the marriage is important, because both property division and ongoing payments between the parties can be influenced by the number of years they’ve been married. 

Children
We generally start the mediation itself with a discussion of the couple’s minor children if there are any.  There are several important issues all of which generally take some talking.
Custody has two sides:  
Legal custody involves the major decisions in children’s lives.
Physical custody deals with where they live most of the time. 
Both custodies can be sole to either party or joint. 
     Visitation involves how often the non custodial parent sees the kids. 
Child Support is calculated in accordance with state guidelines based on
the parents’ incomes. 
Removal deals with whether the custodial parent can relocate out of state
taking the children along.
College expenses need to be discussed if the children are likely to attend.

Property
It’s important that the mediating parties understand that in Massachusetts all property owned individually by either of them or jointly by both of them is potentially divisible.  In other words, there’s no such thing as separate property in a Massachusetts divorce.  That doesn’t mean everything is split evenly, it just means everything must be considered in the division.  The eventual property distribution is generally influenced by how long the couple has been married, where the property came from, and the contributions of the parties to the marriage, including homemaking services.
The property discussion usually begins with real estate, focusing on the marital home if the couple owns one.  The big issue is usually whether the house will be sold and the equity divided or one party will keep it and buy out the other’s interest. 
From real estate we move into financial assets distinguishing retirement accounts and pensions from funds held in traditional bank and brokerage accounts.  Then we discuss automobiles and other valuable assets that might exist such as boats, jewelry, and collectables. 
If either of the parties owns a business, often one in which he or she works, that interest has to be valued and considered in the property division as well.  Inheritances expected in the near term can also be a factor.
It’s important to understand that some give and take is usually involved in dividing property.  For example, if one party wants to keep the house, it’s possible to compensate the other for his or her share of the equity with a larger share of money in a bank account.  But it’s also common for the party keeping the house to refinance it in order to buy out the other’s equity.
Splitting up Debts is also part of the property discussion. 

Insurance
It’s important to ensure that both parties and the children are provided with health insurance after the divorce.  It’s especially important to provide for life insurance on a support paying spouse.  The discussion revolves around how much is appropriate for each party and who will pay the premiums.

Alimony and Tax Issues
Alimony is sometimes appropriate, especially in longer term marriages and where incomes differ substantially. 
Responsibility for unresolved issues with the IRS, such as unpaid judgments and pending audits, needs to be discussed

The Mediator’s Role: Identifying and Organizing Contested
Issues and Keeping the Discussion on Track
As each of the areas listed above is discussed, the mediator listens to the dialogue and identifies key contested issues.  The mediator's role is to isolate disputed items and array them so that the negotiating couple can see the big picture.  Sometimes couples are able to resolve each issue individually, but at other times compromises are necessary that involve each party giving a little on one thing in order to gain a little on another. 
The mediator’s role also involves keeping the discussion positive and preventing it from degenerating into angry accusations or shouting.  Without a mediator, negotiations between divorcing spouses tend to focus on the past with each party blaming the other for the marital failure.  The mediator's job is to prevent this from happening and keep the discussion focused on the future.  That is, on finding resolutions rather than placing blame.

Proposing Solutions
If solutions don’t emerge from these discussions, the process can be moved forward by asking the parties to independently suggest one or more remedies they think should be acceptable to the other side.  The question can be posed as a homework assignment between sessions.  This step tends to focus people on moving toward solutions rather than dwelling on the past or the status quo.  It also starts people working on compromise.

Caucuses (Short Private Talks with the Mediator)
At various times, it may be necessary for the mediator to meet with the parties individually.  This usually happens when someone is being unrealistic, or seems to lack some important background knowledge, or the parties are just deadlocked.  Negotiation resumes after caucuses are completed. 
Mediators never reveal anything said in these private sessions without permission.  However, it’s quite common for people to propose ideas in the private session that they were reluctant to put on the table in the joint session.  Those ideas frequently lead to compromise and resolution.

Financial Statements
In every divorce the parties are required to provide the court and each other with financial statements detailing their incomes and expenses as well as their assets and liabilities.  The statements must be prepared in accordance with a format provided by the court.  Although this seems straightforward, most people have trouble putting their statements together correctly.  As a result it’s usually necessary for mediators to spend some time with each party working on his or her financial statement.  We generally do this toward the end of negotiations. 

Resolution - Signing and Instructions - Filing
When a final accord is reached, the mediator writes the couple’s agreement up in a form appropriate for submission to the court at the divorce hearing.  A draft is transmitted to both spouses for review, usually by e-mail. 
When the final agreement is approved by both parties my office completes the court package which includes the Divorce Agreement, financial statements, and several other documents.  We then schedule a final meeting at which the papers are signed and notarized.  After that I give the couple explicit instructions on the procedure for filing their case and describe what’s likely to happen in front of the judge at their hearing.
The divorcing couple files the court package at the courthouse and returns for a hearing before a judge some weeks later.  The judge generally grants the divorce after a review of the agreement and financial statements.  The hearing is “pro se” meaning without lawyers, which of course saves a lot of money.  The judge’s review is brief if the couple’s situation isn’t unusual.  It may take some time, however, if the agreement is complex, especially with respect to finances.  Agreements put together by competent mediators are rarely rejected.

When is Mediation Not Appropriate?
There are several situations in which mediation doesn't work well.
Mediation is problematic if one or both parties are hiding income or assets.  Hidden resources aren't generally revealed in mediation.  Mediating spouses must trust each other to be forthright with respect to finances.  (Hiding money in a divorce may constitute criminal fraud and/or perjury.) 
It's usually not appropriate to mediate when domestic violence is involved.  Victims are often afraid to stand up to abusers, and generally can't negotiate effectively even in the presence of a mediator.
It may not be appropriate to mediate where one party is extremely passive and has been dominated by the other for a number of years.  In such cases, the stronger party may overwhelm the weaker even in the presence of a mediator.

Do You Need Your Own Attorney?
It’s generally a good idea for each party to have the divorce agreement that emerges from mediation reviewed by another attorney.  Indeed, I recommend it.  The cost of such a review isn't excessive, since you’re not hiring the lawyer to represent you; you’re just buying an hour or so of time to review and comment on the document. 
It's definitely not necessary to hire an attorney for the court appearance at which the joint petition is heard.

Your Next Step
If you think mediation may work for you, I encourage you to call my office for an appointment.  There’s no cost or obligation if you decide not to proceed.  Both spouses must come together.  Call 508-829-5211 to schedule a meeting.



DISCLAIMER: The material within this web site is provided for information only and does not constitute legal advice for any particular situation.  Readers are strongly advised to seek professional legal counsel before embarking on any course of action.

William R. Lasher, PhD
Attorney-At-Law
40 Greystone Drive
Holden, MA 01520
Telephone:  508-829-5211
E-Mail: AttorneyLasher@LasherLaw.com
W. R. Lasher Attorney At Law © 2003 - All Rights Reserved
William R. Lasher, PhD - Attorney At Law Mediator
Finding Solutions Is Our Business
Mediation developed as a much less expensive, faster, and less stressful alternative to traditional litigation.  In addition, successful mediation usually produces a higher degree of satisfaction on both sides than litigation.