Mediation is a process for resolving disputes with a neutral and impartial mediator. The mediator helps open and improve dialogue between two individuals in hopes of finding an acceptable resolution for everyone involved.
In the context of family and probate law, mediation can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, actions for modification, will contests, estate planning disagreements, and disputes over the care of elderly family members.
Below we have provided answers to many of the common questions that we are asked regarding Mediation. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
- Less Expensive than Trial
- Work on your Timeline and your Terms
- Solve your Disputes Privately
- Negotiate Complicated or Unique Issues Out of Court
- No Wasted Time or Expense in Court
- Not Appropriate for Every Case
- Requires Voluntary Participation
- Failed Negotiations may Still End in Court
- Giving up Court Protections
Hiring a mediator is a personal decision that should take into consideration the individual facts relating to your case. In some situations, mediation can be a way to reach an agreeable resolution that costs far less than a divorce trial would.
We encourage you to read further about the advantages and disadvantages of mediation to help you decide whether it would be an appropriate forum for resolving disagreements between you and your spouse regarding how to settle your case. For additional information to help you decide if Mediation is right for your read this article on The Divorce Center’s website.
Similar to hiring a lawyer you want to make sure that you ask questions about the mediator’s practice, cost, and experience, to ensure that your mediator fits your financial circumstances. Typically more experience means a higher rate and not every case requires the most experienced mediator.
It is also very important that any mediator that you work with is a good personal fit. A good mediator helps you express your goals and positions in a way that the other side can actually hear. This leads to better understanding and ultimately settlement, but it all starts with the mediator being able to effectively understand your goals. If your mediator is not an effective listener and doesn’t understand what is important to you then your mediation will likely fail.
First, you need to make sure you understand your own goals and can articulate them. Ask yourself the following questions before you meet with a mediator:
- What is the most important issue for you?
- What do you need?
- What do you hope to accomplish in your case?
- What do you want your life to look like after your case is over?
- What do you want for yourself out of life?
- What do you want for the other people involved in your case?
- If your case involves children, what do your children need and what do you want for your children?
- Why are you choosing to meet with a mediator (instead of or in addition to a counselor, coach, attorney or other divorce professional)?
Now that you understand your own goals and needs better, here are the questions that can help you discover if a mediator is right for you:
- What training have you taken in the field of mediation?
- If you also practice a different profession (attorney, counselor, etc.), how is your role different as a mediator than in that profession?
- What advantages and disadvantages are there to hiring an attorney-mediator vs. a mediator with a financial or mental health background?
- What are the other options besides mediation for us to resolve our case?
- What do you think is the most important aspect of mediation?
- How do you help us meet our goals in mediation?
- If we disagree with each other during the case about the best way to attain or prioritize our goals, how will you handle that disagreement?
These questions are not about testing the mediator’s ability to think on their feet or their experience with your type of case. Instead, these questions are designed to illicit answers that will help you know whether the mediator is a good fit for you. After meeting with the mediator you should ask yourself the following questions to decide if you should hire them:
- Do you need a mediator who can provide legal information or one who is more skilled at finances or communication dynamics?
- Does the potential mediator share your approach to problem solving and your style or will their style conflict with yours?
- Does the mediator’s view of what is important in mediation match with your reasons for choosing mediation as an option?
A mediator doesn’t represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for a lawyer to represent both parties in a Divorce. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.
Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.
Conciliation is similar to mediation but with some significant differences. It is similar because the two parties are working with a neutral person who is attempting to help them reach an agreement.
It is different because usually attorneys are present for conciliation. In addition, conciliation usually takes place while a litigation case is pending, while in mediation typically litigation hasn’t begun yet. Sometimes conciliation is referred to as evaluative mediation, because the conciliator may also provide an evaluation or opinion on the case. Finally, conciliators will often report back to the court, while mediation is confidential and privileged.
Many of the Massachusetts Probate & Family Courts have conciliation programs in which the court will appoint a free conciliator to work with the parties at their request. The conciliator agrees to provide a minimum of two hours and tries to assist the parties in settling without a cost. This Court appointed conciliation requires a report to be filed with the court.
Attorney Kelsey has taken the conciliation training and can be appointed through the court as your free conciliator or you can choose to hire Attorney Kelsey directly. By paying for the conciliation you receive some additional benefits. Your time is not limited as with the court program, and we can work on your case until it settles. In addition, we will work around your schedule to accommodate you and your attorneys. Plus you get to choose your neutral professional by reputation instead of being randomly assigned the next conciliator on the list. Click here to contact us.
Mediation has many advantages over litigation. It is usually less expensive than negotiating your agreement through two attorneys and it is far less expensive than going to trial. Mediation can also help you avoid the backlog in the courts, allowing for a more expedient resolution.
In addition to these practical concerns, though, Mediation offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Mediation is your opportunity to make these decisions together. After all, who knows what is better for you than you do.
On a related not, Mediation is also an excellent forum for solving issues unique to divorce that our legal system cannot adequately address. As an example, many couples will litigate who will get custody of the family pets. While most judges are not interested in talking about this, a good mediator will be able to give an appropriate amount of attention to an issue that the parties may feel is important.
Finally, privacy is an important concern for many of our clients. Court is a public forum. Understandably, many people feel uncomfortable talking about the breakdown of their marriage to a judge in a courtroom full of strangers. Mediation takes place in a more private and comforting environment, where the parties can set their own pace to better accommodate their own emotional and practical needs. – See more at: http://skylarkmediation.com/mediation#sthash.uaX51TIe.dpuf
Mediation is not an appropriate forum for coming to a resolution for everyone. For example, when there is a history of abuse between the parties, mediation often fails because the parties cannot reach the necessary level of trust to mediate their dispute amicably. Furthermore, there are no guarantees that mediation will result in an agreement, which could end up costing you more in the long run. You should honestly evaluate whether you and your spouse are willing to participate in an open process before entering into mediation.
In Massachusetts, there is no requirement that a mediator be a practicing attorney, and there are many excellent mediators with mental health or financial backgrounds. However, non-lawyer mediators are not able to perform some of the duties that their attorney colleagues can. For example, non-lawyer mediators are prohibited from drafting a separation agreement, because this is considered the unauthorized practice of law. Couples completing mediation with a non-lawyer often hire an attorney afterward to draft a separation agreement based on the results of mediation, or they draft the separation agreement themselves before going to court. A mediator who is also an attorney can draft a separation agreement that the couple can later take to court when finalizing their divorce. Furthermore, the expertise of an attorney may be useful in your mediation if you require information on other legal issues that sometimes arise in divorce cases, such as tax or bankruptcy issues.
In Massachusetts, there is no certification for Mediators endorsed by the state. However, the Massachusetts Council on Family Mediation certifies family mediators. MCFM was the first organization to certify family mediators in Massachusetts. Certification is reserved for members of the Massachusetts Council on Family Mediation with significant mediation experience, advanced training, and education. Extensive mediation experience may be substituted for an advanced academic degree. The purpose of the mediation certification program is to promote high standards for the practice of divorce mediation as well as to provide education as needed to mediators as part of our certification process. Attorney Kelsey is an MCFM Certified Mediator.
Since mediators are not licensed by the Commonwealth of Massachusetts, mediators do not technically need to take any training. However, mediation, like any profession, requires training to develop the requisite skills necessary to assist people effectively.
In addition, there are requirements if you want your Mediation to be kept confidential. Massachusetts General Laws Chapter 233 Section 23C requires three elements for a Mediation to be confidential. First, you must enter into a written agreement with the Mediator. Second, the Mediator must have completed at least thirty (30) hours of training in mediation. Finally, the mediator must have at least four years of experience or be a member of a dispute resolution organization that has been in existence for at least three years, such as the Massachusetts Council on Family Mediation, Inc.
Attorney Justin Kelsey meets these standards and if you sign a written agreement to hire Attorney Kelsey as your mediator then all communications and work product of your mediation will be confidential pursuant to the statute.
Mediation can vary greatly in length, but on average divorce mediation last between four and ten 2-hour sessions. A case with fewer issues, such as a Modification or Paternity case, will take less time. A case that is more complicated, such as a divorce involving complicated businesses, self-employment income, or custody disputes, can often take longer. The length of the mediation will depend on the attitude of the individuals, how complicated their disputes are, and how flexible their schedules are.
Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice.
Because the mediator does not represent either party, the mediator will not attend court with you, even after an agreement is reached.