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The Most Common Questions Asked About Mediation
1. Why use mediation?
There are many reasons; the primary ones are: You can:
2. At what point should you use mediation?
As early as possible. It is best to start mediation before the actual physical separation rather than waiting because the mediator can help separating individuals make good decisions. For example, a mediator can help create a good temporary parenting arrangement, calculate the amount of child support, and assist in determining responsibility for the payment of rent or mortgage.
3. How do you choose a mediator?
Carefully. The success of your mediation will be greatly affected by your choice of this professional.
Before hiring the mediator, consider the kind of information you will want to know about this person. On the telephone or during the initial session, you may want to ask the following questions:
4. How much does mediation cost?
Mediation is significantly less expensive than using adversarial attorneys. The parties are in control of mediation costs, which are always on an hourly basis.
5. How long does it take?
Mediation is concerned with the negotiating phase of divorce. The mediation period generally takes six to twelve weeks, though it may take more time or less because of the particulars or anger of the individuals involved. An adversarial divorce takes more in the nature of six months to three years to arrive at a settlement. There is quite a difference in the span of time required for an adversarial versus a mediated divorce. In a mediated divorce, the length of time is determined by the couple, as the court does not intervene. In a court-litigated divorce, there are extreme examples, and many of you probably know situations where the divorce has taken years to obtain. I hope none of you will compare to the man recently described in an article in the American Bar journal who has spent the past twelve years actively pursuing his divorce. (In case you're curious, he still isn't divorced!)
There are several factors that influence how long it will take to reach a mediated divorce settlement. If the following factors apply, it will probably take longer than usual to work out your settlement:
One or both spouses:
People with the following characteristics will most likely have a shorter mediation:
It is a couple's attitudes that determine how long they will take to negotiate their settlement. Reasonable men and women will most likely have a fairly short period of negotiations. In all cases, mediated agreements are more efficiently reached than adversarial agreements.
6. Will a mediator make any decisions for us?
A mediator does not make decisions, if she does, she is actually an arbitrator or judge. Instead, a mediator does something which is more valuable-she helps the couple to make decisions that each knows is fair. This informed decision-making component is one reason why mediated agreements have a high compliance rate.
7. Won't the mediator take sides?
No, a good mediator does not take sides. Remember that therapists have long counseled couples without "taking sides." The ability to be impartial is the most important skill of the mediator, and is an important reason why people need to choose a competent mediator. A trained mediator is able to put his/her biases on hold in order to help the divorcing couple.
8.Why do you need a mediator to help?
There are two main reasons that make it close to impossible to mediate your own divorce settlement. First, the end of a significant relationship involves such intense emotional turmoil that it is difficult for two individuals to resolve issues fairly without professional assistance. Second, most individuals do not have the specific knowledge necessary for making informed decisions in divorce-related areas. For example, a couple may think that the pension in the husband's name automatically belongs to him, not realizing that the law in their state considers pensions a marital asset. Or a spouse may attempt to waive rights to an asset without even knowing its value.
I have gotten calls from separated people who tell me, "We've already divided everything up and just want it formalized." More often than not, the list was made by just one spouse, with the other spouse simply going along with the idea. In every case I have seen, the couple has left out at least one important area, such as future support modifications or real estate responsibilities. Frequently, there are serious omissions that, by law, must be included in a divorce agreement. There aren't any statistics on these types of do-it-yourself settlements, but it is safe to say that uninformed decisions generally do not have good track records.
The kind of situations in which a couple may be able to negotiate their own divorce settlement tend to be cases in which the marriage was of minimal duration, there are no children, the spouses have comparable incomes, and they have minimal assets and liabilities. In addition, their negotiations will be less stressful if they have been separated for at least six months.
It is unrealistic to expect to work out a settlement with someone you are divorcing if any of the following apply to your situation: the duration of your marriage was four years or more, you have minor children, you own a house or any other real estate, you and your spouse have more than $50,000.00 in assets, only one spouse receives a paycheck, you have been separated for less than six months, you have a history of disagreeing or an inability to communicate with each other, or one spouse has significantly more financial knowledge than the other.
Mediation using the help of a neutral individual, is the closest process for a do-it-yourself divorce settlement as you are the ones making the decisions.
9. Does a mediator meet with the children?
Typically, the mediator does not meet with the children. Instead, the mediator meets with both parents in order to help the parents create a parenting arrangement which is in the best interests of the child. A knowledgeable mediator-one who is informed about the developmental stages of a child and specifically, how the crisis of separation and divorce affects a child-is invaluable in helping families create a post-divorce arrangement that will work because it takes in everyone's concerns.
10. Is there any risk in using mediation?
As with any profession, if you have an incompetent professional, you will not have a successful service. In mediation, the specific risk of an incompetent mediator is that the less financially sophisticated person will probably end up with a bad deal, i.e. get less money and less than his or her fair share of marital assets.
Unfortunately every profession has its share of practitioners who are not skilled at what they do. Mediation is a relatively new profession and the small number of current mediators are highly skilled individuals, but as this field increases, it will most likely have the same problems as other professions in guaranteeing the quality of its practitioners. Your mediator is not well-skilled if he or she:
11. Do you still need a lawyer?
"In early Greece, republican Rome and dynastic China there were rules against paid legal advice," says Jerald Averbach, in his book Justice Without Law. Many separating individuals wish this was true today, fearing that lawyers will sabotage their mediated divorce settlement. Rarely does a mediator require a client to retain an attorney, however, the majority of mediators recommend that each client consult with a lawyer at some point during the mediation and certainly, prior to signing the divorce agreement.
It is amazing to me how many individuals will take an agreement to their attorney after it is signed-when it is too late-rather than before it is signed. The potential for difficulty may be minimized if legal advise is received during the mediation. During the mediation, a lawyer may provide ongoing advice in complicated legal situations. When a client picks up erroneous information (whether from well-meaning friends or TV programs), I often suggest that he consult with a lawyer to help serve as a reality tester. A client with an extremely unrealistic idea of his or her probable legal outcome, or one who refuses to understand the consequences of the choices they are making, may be helped by hearing a lawyer's advice. Obviously, the lawyer's attitude toward mediation is critical: the lawyer should be supportive of mediation as well as experienced in divorce work.
Some mediation clients hire consulting lawyers during mediation because they have legal work which they want done at the same time as the divorce, such as transferring real estate or writing a new will.
While it is unusual in private mediation to have lawyers present during the mediation sessions, it is common if one is using a court employee as a mediator.
Men and women in mediation make their own decisions; that is one of the strengths of the process. You may choose to use lawyers, and they may-indeed should-give advice, but you must take responsibility for the actions that result. When you give your decision-making power to someone else, it may feel good for the moment, but in the long run, people who do not take part in their own financial and personal decisions often live to regret it. Mediation provides a method to make your own decisions.
12. Will you get a better settlement if you go to court?
Occasionally someone asks me, "Won't I get the entire house if I go to court and tell the judge what my husband did?" or "Wouldn't the judge see that I shouldn't have to pay that amount of child support to an ex-wife?" The men and women asking these questions have one characteristic in common-they have never appeared in a divorce court action. Men and women who have already been to court for a divorce know how unrealistic these questions are. They know that you rarely get a chance to tell your entire story in court and when you do get the opportunity to speak, the parts you think are essential often are not allowed into evidence. The court decision will most likely hinge on technical aspects that seem absurd to someone not versed in "the law."
Most people go to court with one idea-they believe the judge will decide in their favor. Rarely have I met anyone wanting to go to court who assumes they are destined to lose. In some ways, it is a tribute to each person's ability to convince themselves that "I will win once the judge hears what happened." Unfortunately, this naive view of the judge as a kind fatherly protector may not be what awaits you in court.
The actual goals of the judge, in fact, may differ radically from yours. Many divorce court judges share the sentiment of one judge who says, "If I see each of them walking out of court with their head down and looking sad, then I figure I made a pretty good decision." Since there is so much to lose, the court tries to see that neither side loses too badly.
The reality of a divorce court trial is that most litigants walk out of the courtroom feeling as if they have just been run over by a truck. Even the apparent winner rarely feels good. What looks like winning on the outside often doesn't feel good either because the spouse feels entitled to much more than what the court awarded or because he or she feels guilty. The winner may also find his or her enthusiasm dampened by the warning they hear from their lawyer to prepare for the next round, when their soon-to-be-exspouse will surely appeal the judge's decision. An appeal means another trial, more money, and, of course, the emotional trauma that seems to have no end.
There is another courtroom myth that dies hard, the myth that legal fees are paid for by the party who loses. In most divorce courts, this is simply not true. Whether you win or lose, you will most likely be picking up your lawyer's tab.
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Divorcing couples in Massachusetts can divide their property on their own, or they can leave it up to the court, who will divide all the property equitably. When dividing marital property, courts consider such factors as the length of the marriage, the conduct of the spouses, the occupation and income of the spouses, their employability and the opportunity for each spouse to acquire property in the future.
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