Mediation

How is Mediation different from going to Court?

Mediation is very different from Boston Legal and other court room dramas you are used to seeing on television.  The Court Room can feel like a game with winners and losers, but the goal of mediation is to use the personal knowledge you have of your family and your circumstances to make an agreement where the whole family wins. In Court, the Judges can only do what statutes and case law allow them to do.  Through mediation, you have the opportunity to fashion your own creative solution, to do things that a Judge could not do – to almost make your own law!

Can we Mediate before starting a divorce with the Court?

Absolutely! We can help you with your divorce from start to finish.

My spouse and I just fight and can’t seem to talk at all. Can Mediation really help?

We cannot guarantee the outcome of your mediation any more than an attorney can guarantee your outcome in Court, and Mediation does rely on you and your spouse agreeing with each other.  But people often behave better in front of a professional who they are paying to help, if only because they do not want to seem like the “bad guy.”  A good mediator maintains an atmosphere of mutual respect and is proficient with techniques like Interest-Based Negotiation, Active Listening, and classic Brain-Storming, and will use them to help you and your spouse get unstuck on difficult issues.

Do I have to sit in the same room with my spouse?

No.  Our first rule for mediation is that everyone has to feel safe, emotionally as well as physically.  If someone doesn’t feel safe, then they will not have the mind-set to think clearly and to make good decisions.  If either party wants to be in separate rooms and have the mediator go back and forth carrying communications and offers, then that is what will be done.  This is called caucusing.

Whose side is the Mediator on?

The mediator is a neutral facilitator.  As a neutral party, the mediator doesn’t advocate for either person the way an attorney does. As problems are brought to the table, the mediator serves as an advocate for solutions that you are both are willing to agree to.  As a facilitator, the mediator’s job is to maintain a balance so that everyone feels safe and can say what they need to say.

Does the Mediator decide for us?

Absolutely not!  The mediator is not a Judge and cannot “Order” you to do anything, or force you to sign any agreement.  This is your legal issue, and the mediator’s role is to facilitate and help – not to decide for you.  Parties to a dispute know their family and circumstances better than anyone else, and with a little help, come up with amazing and creative solutions.  The mediator will also share with you solutions that have helped others in the past and some creative ideas of their own, but in the end, these are all just options for you to choose from and to help you create your own options.

Can I have an Attorney involved?

Sure!  Working with attorneys in mediation is quite normal, even before a lawsuit is filed.  In our experience, the best attorneys are open to negotiating at the earliest stages. You may have an attorney attend mediation with you, or they can be someone you consult with between sessions and ask to review documents. Good attorneys can provide you with realistic expectations and the legal advice you need to make fully informed decisions and can also help brainstorm creative solutions.  We can refer you to a reputable settlement-minded attorney who will not reflexively tell you to go to trial in Court.

How About Other Professionals?

Yes!  These days many people have difficult financial situations like an upside-down house or crushing debt. In those situations it is often wise to get some advice form a Foreclosure Defense Attorney and/or from a Bankruptcy Attorney. From time to time we run into an extremely complicated financial situation that could benefit from the input of a Financial Planner or Business Valuator, or concerns about children that could benefit from the advice of a Child Specialist, or even work opportunities that could use the assistance of a Vocational Expert.  We can add any professionals that we need to our mediation process and their contributions during mediation will be protected by mediation confidentiality.

Is Mediation confidential?

Yes – what is said in mediation stays in mediation.  Information shared in mediation is confidential except where disclosure is required or permitted by law.  There is also confidentiality while caucusing, so if you do not want the mediator to share with the other person something that is discussed in caucus, let the mediator know what information that is and they will protect that confidence.

How long does Mediation take?

At least three hours are set aside for each mediation session.  This allows enough time to develop the issues, generate solutions, draft, revise and sign an agreement. Some matters may take more than one session to complete, especially if there are a great number of issues or if there is great complexity.

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