In technical terms: Mediation is a form of alternative dispute resolution where a neutral third party attempts to open and improve dialogue between two individuals in hopes of finding an acceptable resolution to a dispute.
Put more simply, Mediation involves two people hiring an impartial mediator to help them reach an agreement.
In the context of family law, mediation can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification.
Why should I hire a Mediator?
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.
Who does the Mediator represent?
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. It is not reasonable to believe that a lawyer can represent two adverse clients, even with consent.
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 anagreement that they are both satisfied with.
What are the advantages of Mediation?
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.
Finally, privacy is an important concern for many of our clients. Court is a public forum, but Mediation takes place in a more private and comforting environment, where the parties can set their own pace.
Are their disadvantages of Mediation?
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.
Does it matter if my Mediator is a lawyer?
In Massachusetts, there is no requirement that a mediator be a practicing attorney. 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.
Is there a certification in Massachusetts for Mediators?
In Massachusetts, there is no certification for Mediators. However, 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.