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Q: Mediation means that I must give up everything I want and will walk away empty handed.

A: This is a very common misconception about meditation and the opposite is the case. In a mediated divorce, both parties sit down with a neutral mediator and the mediator represents both parties. The process then becomes one of give and take. “I’ll let you take the car if you let me take the surround sound system.” Most mediation can be accomplished in a single meeting and both parties walk away satisfied that they were able to keep the possessions that mattered the most to them. More importantly, since mediated divorces are so simple, the process is quick, legal fees are kept to an absolute minimum, and the divorcing parties don’t end up spending their collective savings on lawyer’s fees for a contested divorce. Lawyers' fees in contested (non-mediated) divorces can reach many thousands of dollars.

Q: I can’t do mediation because I’m not able to be in the same room as my spouse without us quickly getting into a screaming match.
A: The best and fastest mediated divorces are those where the divorcing parties put their differences on hold for a day and focus on mediating the division of their assets. Nevertheless, if you absolutely cannot be in the same room with your spouse, mediation can done on a “shuttle” basis. The mediator acts as a go between for the two parties and transmits offers and counteroffers on each party’s behalf until the property division is completed. This takes a bit longer but is still thousands of dollars less expensive and many months faster than each party hiring a lawyer and fighting it out in court in a contested divorce.

 


Q: If I go to court I am more likely to get what I want, especially when the judge and jury hear how my spouse behaved.
A: Going to court is always a risky venture in that there are never any guaranteed outcomes in a court case, even when the evidence appears to be overwhelming in one party’s favor. In mediation, both parties have opportunities to tell their side of the story to the mediator and the mediator takes all these factors into account when working with the parties to divide their assets. The mediator hears the whole story, just as a judge and jury would, but for a fraction of the cost. Keep in mind also, that the things one can tell a mediator are often not admissible in court because they violate very complex Rules of Evidence. A mediator is not bound by the Rules of Evidence and therefore, each party gets to tell her/his full story so that the mediator has a much more complete picture than a judge or jury ever will.

 


Q: If I go to mediation instead of court, I will lose custody of my children.
A: This is a very, very common misconception. The legal standard that courts use when deciding custody issues is, “What is in the best interests of the child/children?” Thus, if you have been at least a reasonably good parent prior to the divorce, you will not lose custody.
 


Q: Mediators do not understand the law as well as lawyers and judges do.
A: There is some truth to this statement.  It all depends on whom you pick for a mediator. As with any profession, mediators span the range from not very good, all the way to outstanding. And it is true that some mediators are not even attorneys. I have been mediating disputes for almost 30 years and, I am a licensed attorney in both Massachusetts and California. While I cannot say I was successful in every mediation I undertook, over the course of my career it has been the rare case where mediation under my direction broke down and the parties had to spend the money to have their case settled in court. I cannot promise that any given mediation I conduct will be successful however, my track record is such that the odds of success are strongly in our favor.

 


Q: Because I agreed to mediation, I must accept the outcome, even if I do not like or agree with it.
A: This is entirely false. Mediation is based on the parties putting aside their differences and anger for a brief period to reach a compromise on key issues, in a manner that leaves both parties satisfied with the outcome. However, either party may, at any time, refuse to continue the mediation, file for a contested divorce, and go through the time and expense of having her/his case heard in court.
 


Q: If mediation breaks down and we end up going to court, because the mediator is an attorney and knows our case, he can represent us in court.
A: Unfortunately, this is not true. In a mediation arrangement, the mediator represents both parties equally, based on the logic that both parties want the same thing; to work together to settle the division of their property. However, if mediation breaks down and the parties head to court, because the mediator had represented both parties equally (during mediation), it would be unethical for the mediator to represent one of the parties in court. In other words, the mediator would have an unfair advantage against the party he is not representing because the mediator has all the in-depth knowledge gained from meditation. In cases where mediation breaks down and the parties head to court for a contested divorce, each party must find and pay for her/his own lawyer to represent her/him in court. Both parties must start the entire process over with new attorneys and this adds to the increased expense and time associated with a contested (rather than mediated) divorce.

 


Q: If my spouse doesn’t want a divorce, I can’t use mediation because I can’t get divorced unless s/he agrees to the divorce.
A: This is a very common misconception about divorce. Every married person in the United States, even if s/he was validly married outside the United States, has an unqualified right to a divorce. Meaning, if one party wants a divorce, s/he will get the divorce with or without the other party’s consent.  Courts will never force a couple to remain married. The important point is that even where one party does not want to get divorced, because a divorce will be granted nevertheless, it is in both parties best interests to come to the mediation table and settle their property division (and child custody issues, if there are children). If one is going to get divorced anyway, it makes sense to do it as inexpensively as possible, and that is where meditation comes in.
 
Q: I can’t go to a mediator because I am too embarrassed to admit the things I have done wrong and that have led to my divorce.
A: I am an experienced, licensed attorney and after 30 years of mediation, who has heard just about everything. Much more importantly, your mediator’s job is to reach a marital settlement with which both parties can be comfortable. It is not your mediator’s job to pass judgment on anything you’ve done.  Passing judgment is the responsibility of a judge and jury in a courtroom. Thus, opting for a contested divorce in court, rather than mediation, means that all your dirty laundry will be aired in open court for everyone to hear and, the jury and judge will indeed pass judgment on your behavior. Your mediator is an experienced attorney and will leave the passage of judgment to others. Of course all information during mediation sessions is privileged (confidential) between the divorcing couple and the mediator.

MEDIATION FAQ