Written by Barbara Kellman
First Published by PCFINE CONNECTION
VOL. 3, NO. 1 SPRING 2014
Psychoanalytic Couples & Family Institute of New England
Divorce is like a jigsaw puzzle. Each piece of a family’s life -- parenting, current finances, assets, living arrangements -- must be disassembled, reviewed, and then put back together in a way that fits the family’s future. [1]
Traditional Adversarial Approach
In traditional law practice each party retains an attorney[2] and the attorney is ethically bound to zealously represent her/his client regardless of the needs of the other party. To some attorneys this means eschewing reasoned discussion, sending a lot of requests for documents, taking multiple depositions[3], and relying on the court to decide all aspects of the case (or at least threatening to rely on the court, which can lead to pressured last-minute and hostile discussions of important issues). This approach can be expensive (since it involves two attorneys each billing by the hour and hours include waiting in court and long depositions), alienating, and lengthy.
Mediation Basics
In mediation, the parties together select a mediator whose job is to work with them as a neutral facilitator[4]. The mediator provides both parties with the legal information they need to reach a full Separation Agreement. The parties provide the factual information. Mediation is a private, voluntary, confidential process. Each party must sign an agreement, which reflects his/her informed consent to the process and his/her right to terminate the process at any time.
In mediation the parties may choose to be represented by counsel during the process but it is unusual for attorneys to attend divorce mediation sessions. Rather, if desired, a party can meet or speak with her/his attorney between sessions for guidance in formulating goals and reviewing possible points of agreement. Most mediators strongly recommend that each party have the agreed-to Separation Agreement reviewed by independent counsel before filing with the court. Depending upon the complexity of the case and the confidence of the party, many people can successfully complete mediation without using an attorney until the review of the Separation Agreement.
Why Choose Mediation?
1. Cost. Mediation is generally much less expensive than an adversarial approach. Decisions can be made by the parties without lawyers. Typically mediation sessions last for two hours and occur every few weeks. Timing is dependent only on the schedule of these three people, the availability of necessary financial and other information, and the emotional readiness of the parties to meet and address each issue. Thus the parties are paying for a series of two-hour meetings with one professional rather than each party paying for significant time of separate counsel.
2. Relationship. Mediation promotes communication between the Parties. This can be particularly necessary if they will be co-parenting. (For reasons obvious to couples’ therapists it is also usually important for individuals without children or whose children are grown.) Instead of being involved in a multiple year fight with each other the parties are involved in what could be as little as a two to four month series of meetings in which they work together to develop a parenting plan.
3. Control, Timing, and Privacy. When a judge decides a family law case, s/he has great discretion. Although Child Support is now quite predictable, the judge can decide to deviate from the Guidelines. Likewise with Alimony. The Parties do not get to choose their judge and they do not get to schedule the court appearances on their own terms. While awaiting a hearing or a trial a Party can fantasize about how vindicated he or she will feel when the judge rules in his/her favor, but the reality is that the ruling may not completely satisfy either Party. Also, because our divorce law is “no-fault”, the other Party’s behavior, unless it was abusive or criminal, is not likely to play a major role in the judge’s decision or even be mentioned. In addition, litigation can become protracted because of pre-trial “discovery” and then waiting for the scheduling of a trial. If Parties are truly ready and eager to resolve their differences, mediation can take place over a few months and then it can take a few months to get into court for a brief hearing.
4. Looking Forward. Mediation is an affirmative and action-oriented process which at its best supports Parties in moving forward in their lives and not looking back to lay blame and punish the other. It is intended to be a creative exercise, supporting each party in taking responsibility for the future.
Why Not Choose Mediation?
1. Spouse Abuse or Neglect. Mediation is not generally recommended when there has been any kind of spousal abuse (physical or verbal). The reason is that each Party needs to be and feel sufficiently empowered and able to speak up for his/her needs and interests and for her/his view of the best interests of the children.
2. Parties’ Inability to Speak for Themselves. Absent abuse, it still may not make sense if one party is shy, introverted, reticent, or otherwise would have difficulty carrying on a reasonably balanced conversation with the help of the mediator.
3. Extremely High Degree of Anger. If there is too much rage or anger for the parties to be together productively in conversation even with the help of a professional, mediation might just not work. Or, one or both Parties may want to play out their feelings in public without regard to the amount of money they spend or aggravation they cause.
All three of these barriers can potentially be analyzed and overcome by adding lawyers or other support professionals in the process as needed. For example, I have worked with couples where I’ve encouraged simultaneous work with a mental health professional around the parenting plan or ‘anger management’ if it seemed like that could facilitate their work in mediation.
4. Lack of Trust. Mediation is not recommended if there is a likelihood that one party will withhold important financial or other information. Mediation is a process based upon openness and disclosure and isn’t viable without these elements.
Are there Other Possibilities?
Not all divorce lawyers automatically use an adversarial approach. It is possible to hire counsel and negotiate cooperatively with minimal or no court involvement.[5] Both Parties need to choose counsel carefully to make sure that the lawyers hired understands the strength of the desire to cooperate and are willing and able to work that way. Also, the courts can be accessed as part of the mediation process if there is a very knotty legal or factual issue.
There is a formal process called Collaborative Law, which can be the subject of another article. Good resources to learn more and to find mediators and lawyers who will work cooperatively or Collaboratively are the Massachusetts Council on Family Mediation (www.mcfm.org) and the Massachusetts Collaborative Law Council (www.massclc.org).
Barbara Kellman, J.D.,M.S.W.
[email protected]
[1] Divorce Law Basics
To get divorced in Massachusetts a couple with children must address three major areas: (1) custody and a plan for parenting of children; (2) housing and living expenses for both parents and children; and (3) division of assets. Every divorce agreement (referred to as a Separation Agreement in Massachusetts) or Court Order must provide in detail for each of these areas and must address other topics, including health and life insurance, and education.
There are very specific official Guidelines for Child Support and now a fairly specific law regarding Spousal Support or Alimony. These come into play in the second category: housing and living expenses mentioned above. Child Support and Alimony are also affected by each other (if Child Support payments are high, there may be less need for Alimony in some circumstances and vice versa).
The parenting plan (or physical custody arrangement, a term which is out of favor) is highly relevant to Child Support. The division of assets – which must be done ‘equitably’ (loosely translated as fair and reasonable for the specific family’s circumstances) is also linked to the Child Support and Spousal Support payments (if any) because if one party has more assets and if the assets include a home that is paid-for or assets which produce income, then he or she may need less support.
[2] Parties can represent themselves in divorce in Massachusetts. If there isn’t a lot of property involved and there is good agreement around parenting, and there is no abuse or power imbalance, this is probably fine and is the least expensive approach.
[3] A deposition is oral testimony under oath taken in front of a court reporter (who can then transcribe it), which can be used in different ways in a trial.
[4] The mediator may or may not be a lawyer, but if she is, she cannot provide legal advice to either party (as opposed to legal information).
[5] I recently negotiated a case where I represented the husband. There were two children in late teens and the parents were relatively amicable but not without significant sore spots and disagreements. The parties did not want to sit down together in a series of meetings. The lawyer for the wife agreed to work cooperatively and we negotiated a full Separation Agreement by telephone without ever meeting in person. The process took just over a year.