Right now, more than ever, mediation can assist with family restructuring. The courts are backed up and families are under tremendous strain under one roof. The good news is that the entire process of a mediated divorce or separation can now be done online.
How do you choose a mediator? Is it safe to google “mediator” and pick whoever comes up first? When it comes to getting divorced, you don’t want to cut corners making decisions about your children’s custody, child support, your retirement accounts or who gets the marital home. Do it right. Find a qualified, competent and compassionate mediator. A little research into finding the right person will go a long way.
1. Lawyer or Nonlawyer?
Mediators have training and professional backgrounds that range from retired schoolteachers to child psychologists to lawyers. If you are mediating mainly issues about child custody and setting up a parenting schedule, a mediator who is also a psychologist or a social worker can be a great fit. However, if you are doing a full divorce with significant financial issues such as child support or property division (for example, when real estate is involved) a mediator with a legal background is a good idea.
2. Go Local
Though Zoom will allow you to use a mediator from virtually anywhere in the world in the comfort of your own living room, family law is specific to each state. It can also be a big help to hire a mediator who is familiar with your local judges and what kinds of agreements they like and typically will accept. (Probate and Family Court judges can reject an agreement if they consider it unfair.) Also, it can be helpful to have a mediator familiar with local issues such as schooling during COVID. So, if you live in, for example, Hampshire County, while you could hire a mediator from Suffolk County, you should ask them if they have experience with cases in your area.
3. Is Mediation Confidential? Only If the Mediator is Trained!
Court is public. However, Massachusetts law says that mediation is confidential but ONLY if you are using a properly trained mediator who has four years of experience. (You can also use a trained mediator who is accountable to certain dispute resolution organizations or has been appointed by a judge see MGL c. 233 s. 23C). Be sure to ask your mediator if they are covered by the confidentiality statute!
TIP: A little known fact is that mediators are not regulated like lawyers are in Massachusetts. Unfortunately, that means almost anyone can say they are a “mediator.” Attending professional development training, belonging to a professional organization like Massachusetts Council on Mediation (MCFM), or giving back by mentoring other mediators is a good sign that the mediator isn’t just doing a little mediation “on the side.” You want someone who is dedicated to improving and honing their skills.
4. Who Decides? Mediator or You? The Mediator’s Style
Mediators have different ways and styles of mediating. Most mediators are facilitative and believe their role is to be a guide; it’s up to you and your spouse, not the mediator, to make a decision. Empowering you and your spouse to make a fair decision that is informed by your needs is a basic tenant of a facilitative divorce mediator. Other kinds of mediators, often those who have a professional history as a litigator or retired judge, are more directive and concerned with rights and the law. (Sometimes this is called evaluative mediation.) While they shouldn’t tell you what to do, this kind of mediator may lead you in a certain direction and have more influence on the outcome of your divorce.
5. Private, Court Appointed or a Non-Profit
The benefit of hiring a non-profit agency to mediate your dispute is that they often have reduced rates. Thus, a non-profit can be a great way to make mediation even more affordable. The downside of using a non-profit is that you usually cannot pick your own mediator. The non-profit will assign someone to you. And your mediator may or may not be a lawyer. In Franklin, Hampshire and Hampden Counties the Collaborative Resolutions Group (CRG) is an excellent non-profit offering reduced rates for mediation, and many of their mediators are lawyers.
Often, court appointed mediation is done through a non-profit organization. There may even be ways get some mediation for free. Usually for court appointed mediation you must have already filed in court.
When you hire a private mediator, you are choosing the person who you have researched as the best fit for you. The mediator is working directly with you so scheduling and administrative aspects of the process are streamlined and easier.
Ask if your mediator is insured and for how much. They should be but there is no requirement that a mediator carries insurance.
7. How to Find a Mediator? Online? Referral Service?
A combination of the following is a good strategy:
Online search: Look on referral websites that support mediators (not websites mediators advertise on). Massachusetts Council on Family Mediation (MCFM.org) and Mediate.com each offer trainings and support for mediators and allow you to search their database of mediators.
Mediator websites: Look at the mediator’s bio page. Is family mediation one of their main practice areas? Do they have reviews from former clients on their site?
Ask around: if you have a lawyer, see if they can recommend a couple of good mediators. Therapists such as a couple’s counselor are a great resource. If you have a friend who has used a mediator, ask them about their experience.
8. Talk to your Spouse
You and your spouse will have to agree on a mediator. So, it’s important to provide information on the mediator you’re considering to your spouse. Get your soon-to-be-ex involved in the search and if possible, provide them with the names of at least two mediators you approve of so that they don’t feel like you’ve chosen the mediator and they have been part of the selection process.
Private mediators usually charge by the hour. Some take payment up front, which is called a retainer. Others are “pay as you go.” If you’re splitting the cost with your spouse, mediation is considerably cheaper than each of you hiring a lawyer. Non-profit organizations offer a sliding scale.
10. Do You Feel Comfortable with the Mediator?
So, what do you do if you phone up a mediator, chat with them and come away thinking, “I don’t really like that person much?” Don’t hire them! It’s important to trust your mediator. Many mediators offer a free or discounted 30-minute mediation consult where they explain how mediation works. This is your chance to assess the mediator and figure out if there’s a good fit. And don’t worry, mediators offer this to also make sure you are right for mediation. So, if you’re on the fence about hiring someone, try a free consult. You have no obligation to hire that mediator at the end of the consult.
It doesn’t take a lot of research or hard work to find a skilled, experienced mediator who can affordably and efficiently help you and your spouse work out the serious issues divorce presents. However, you want to make sure you find a mediator is trained and qualified, is well respected by other professionals and by former clients and works in style that gets you a result that you can live with.
Suggested Mediator Phone Call Script
1. Do you have mediation training? Yes No
2. Do you belong to any mediation professional development organizations? Yes No
3. What is your mediation style? Facilitative (mediator facilitates you and your spouse making a decision) or directive (mediator leads you to an outcome)?
4. Are you insured? Yes No
-> If yes, how much insurance per claim?
5. What is your hourly rate?
6. Do you offer a free mediation consult? Yes No
COVID-19 & Mediation: From the Stresses of Space Sharing to Changing a Parenting Schedule, Mediation Can HelpRead Now
Even the strongest relationships are being tested in these uncertain times. In the past few weeks, I’ve heard from families who are juggling home-schooling children while working from home; divorced parents who are trying to navigate a safe way to maintain a court-ordered parenting plan; business owners anxious about how to plan for the future; and I’ve heard from parents working on the front-line and have had to isolate themselves from their children. These stresses have emotional and frequently financial implications. For example, if you cannot have space to work from home, you risk losing your job or income. Or, what happens to child support if you place your child with a safe relative so you can work? Mediation offers a place to talk and work through these issues.
How Does Mediation Work When You Can’t Meet Face-to-Face?
A mediator can meet with you either through Zoom or by phone. The mediator’s job is to facilitate communication; to take a situation where people are stuck and to help them build a way out, a plan to move forward.
I can mediate discrete issues such as:
Step one is giving me a call or shooting me an email. By the way, mediation is totally confidential.
Is It Legally Binding?
Yes, a mediated agreement can often be binding if that is what you would like. For example, a contract can be drawn up that you both sign virtually. Or it can be an informal agreement that you both commit to. Written agreements between separated parents are often filed in court and enforceable. I can help with this.
For Couples, Is Mediation the Same as Counseling?
Mediation is different than couples counseling. Mediation tends to be a more short term process to address an immediate or urgent concern. It is based on dispute resolution techniques and principles of fairness and neutrality. It does not go on a deep dive of your relationship history or mental health, and is not a “treatment.” Rather, it is aimed at improving communication and reducing misunderstanding to help build concrete resolutions or plans.
Is it Expensive?
Mediation is less expensive than, say, going to court. But it isn’t free. There are a range of professionals and organizations doing mediation in the Pioneer Valley with a range of fees. While lawyers are the most expensive, there are other professionals and even mediation non-profits offering lower and sliding scale rates. A good resource is to check MCFM (the Massachusetts Council on Family Mediation) or Mediate.com for a suitable professional.
During the COVID-19 crisis, I am offering a flat rate of $200 for a one to two hour initial mediation session. (My usual rate is $260 per hour.)
Who am I?
I’m a lawyer and a mediator based in Northampton, MA. I’ve worked with families for over twenty years helping to resolve issues between spouses, between friends, between co-workers, between businesses and between family members. I am also an adjunct professor of mediation at the Western New England School of Law. In my personal life, I’m a parent, cyclist and enjoy the outdoors (and have taking more time to do so these past few weeks!) but sure do miss going to the cafes and restaurants in our area.
By the way, mediators do not have to be lawyers. But being a lawyer helps when it comes to identifying complicated legal issues and drafting agreements. Other professionals (like mental health professionals) can bring their own unique skills to mediation.
Have You Ever Seen Anything Like This Before?
In my 20 years practicing law, the answer is “No.” However, the level of disruption seems to me to be comparable the aftereffects of 9/11. At that time, I was living in Boston. For me, like everyone, the months after 9/11 were full of uncertainty which I struggled with. I remember constantly looking at the news to try to make sense of things. Today, while I’m trying to moderate my news consumption, I am adapting to this temporary situation. Like others, I am grieving for the losses and disruption this virus has caused. (There is an interesting article naming the feeling we are having as grief here.) My mediation practice is adapting to helping people in this new climate. (My online mediation tools and practice skills have had to grow.) Because I also teach mediation, I keep thinking about how these changes will be useful teaching tools but that they also demonstrate what is so great about mediation: whether online or in person, mediation gives people a fair place to work things out when they’re feeling stuck. It delivers concrete results.
Mediation can be a helpful resource to help resolve sources of conflict and tension generated by the current COVID-19 situation.
Let’s face it, the cost of how you get divorced is important. Lawyers cost a lot of money, especially if you and your soon-to-be-ex are heading for trial. Mediation might be an option that is better suited to your situation. But how much does mediation cost? I averaged the cost of divorce mediations I have completed in the last two years. (I charge $300 per hour – the first 30 minutes and last 30 minutes for paperwork are free.) The average cost worked out to be $3,150 total, or, if you are dividing the cost 50/50 between you and your ex, $1,575 per person. That’s almost half the cost of a typical $3,000 retainer paid to a divorce litigator. It’s a fraction of the cost of a trial, which in my experience typically costs more than $10,000 per person.
Costs Can Vary
OK, the average cost of $1,575 may not be the cost you pay. That is because each case is unique and may require a greater or lesser number of mediation sessions to come to a satisfactory resolution. (Usually, my mediation clients have from one two-hour session to about seven two-hour sessions.) Different factors can lead to more or fewer sessions. Do you own real estate? Do you have children? These are fairly typical however some people have multiple properties and investments, which can increase the amount of time spent on these issues.
Getting a case settled in one session is, frankly, very, very unusual. That’s because there are a number of issues that a Separation Agreement must cover. To get divorced in Massachusetts, a judge has to review and approve your Separation Agreement. Leaving out any of these critical issues could mean that your divorce is not granted. So, for example, if you have children, your separation agreement must address your parenting plan.
It’s also important to recognize that success in mediation should not measured just by cost. It’s measured to a large extent by the durability and functionality of the resolution. Your mediated agreement is not a temporary fix. Ideally, it’s supposed to work for the rest of your lives, accommodating and responding to life’s changes. So, putting in the time to lay a foundation for a solid agreement will not just pay off in your divorce, it should help with things like co-parenting, in the future.
What About Help with Divorce Papers?
Yes, I help you with this! For starters, you are supposed to share financial information with your spouse. To do this, a Financial Statement form is required. I provide clients with this form and information about how to fill it out and file it in court.
The most important paper is a Separation Agreement. It will contain all the terms about what is happening in your divorce: property division, child custody, alimony etc. Usually, I draft this after the mediation sessions have addressed all the issues. It typically takes me two hours to draft.
Once a Separation Agreement has been drafted, I meet with you, and once you both are comfortable with the agreement it is signed and notarized at my office. Then I stop the clock on billing. Mediation is done! I will provide you with blank forms that have to be filed in Court with your Separation Agreement. These include a Joint Petition for Divorce and an Affidavit of Irretrievable Breakdown. It usually takes about 30 minutes at my office to fill these court forms out together.
Mediation costs frequently range from $1,500 to upwards of $4,000 total however each case is unique and costs will vary. Because divorce can have a lasting impact on your family’s finances and relationships with loved ones such as children, it is important to choose the process that is right for you. While mediation avoids the stress and battle of court, another huge benefit is that a successful mediation will probably save you money too. Reaching out to a mediator for an initial consult is a great next step!
When using these resources make sure the information provided is current and applies to your case. Take the time to educate yourself fully, don't assume that the results of your research guarantee results, and always consult with a lawyer about what you learn.
INFORMATION ON THE LAW
Whether you are pro se (self represented) or have a lawyer, you will need to educate yourself on the law. Where can you go to do that?
Franklin Probate and Family Court Resource Center
MA Trial Court Law Library Website -- This is a great resource
MassLegalHelp.org -- Step by step, easy to understand explanation of family law
Lawyer for the Day programs
DOMESTIC VIOLENCE INFORMATION
New England Center for Women in Transition (NELCWIT)
If you have children and have filed in Family Court in MA, you will probably be required to take a parenting course. May sure that it is a certified course!
WHERE TO FIND
a. A Mediator -- Try the Massachusetts Council on Family Mediation directory of mediators.
b. A Collaboratively trained lawyer or divorce coach -- Try the Massachusetts Collaborative Law Council directory.
c. A litigator -- Try your local bar organization. For example, in Hampshire County try the Hampshire County Bar Association. In Franklin County, go to the Franklin Bar Association. You can also try the Mass Bar
d. A free lawyer -- If you are low- or no-income there still ways to get legal advice and I encourage you to utilize them. Whether you're just starting out or near the end of your legal journey, legal advice is always helpful not just for you but for your children and their future. You might want to try Community Legal Aid or a Lawyer for the Day program at your local courthouse. Many lawyers also offer a free or low-cost initial consult.
INFORMATION ON CALCULATING CHILD SUPPORT
Child Support Guidelines
Child Support Calculator
INFORMATION ON ALIMONY
For detailed steps on how to educate yourself on the law and do legal research, go to a law library (they are often at your local courthouse) or take a look at my book, Representing Yourself In Court. In my book, I explain how to do legal research and prepare for court. I also explain how to interview and hire an attorney.
For family law legal information in the Pioneer Valley, the Franklin and Hampshire County Probate and Family Courts have produced excellent pamphlets explaining the law. These are available at each courthouse.
Finally, if there is a resource you have found helpful but is not listed here, please send me an email!
Originally Published, Divorce Magazine, April, 2016.
In all my years as a lawyer, I've only encountered a handful of people who actually want to go to court without a lawyer. Typically, they either hope to save money or have had some bad experience with a lawyer (a few, however, have been right out of a Dickens novel: obsessed with constitutional arguments and spending too much time at the courthouse library). Most times, divorcing people are pro se or self-represented litigants because they have no choice: they cannot afford to hire a lawyer. If you have a choice and can hire a lawyer, do it. A good lawyer will usually save you money in the long run. Work with that lawyer to lay out a plan that is both affordable and effective to achieve the goals that work for you and your children.
For those people who cannot afford a lawyer to represent themselves throughout a divorce case but can afford, say, to hire a lawyer for a couple of hours, I always think a lawyer’s advice is a good investment, especially in the following three scenarios: before you file any papers in court, whenever you are served with court papers, and before you sign any agreement.
For example, let’s say that you and your soon-to-be ex work out most of your divorce issues at the kitchen table. You use a do-it-yourself separation or divorce agreement that has been approved by your local court or by a reputable legal services organization in your jurisdiction. This can be a great way to go for simple cases. However, after you’ve done the work (and before signing that agreement!), it’s a good idea for you each to hire a lawyer just for an hour to look over what you’ve written down so that your understanding of what the papers say is exactly what those papers actually mean.
Using a divorce mediator is also a good option to help you work out your agreement – especially if that mediator is experienced with and knowledgeable about family law (for example, by also being a lawyer).
If you really cannot afford a one-hour consult, take advantage of any free legal advice clinics. Sometimes, courthouses have a “Lawyer for the Day” program. Many private bar attorneys offer a 30-minute free initial consult; however, 30 minutes likely isn’t long enough for a lawyer to establish the facts of your case and offer advice on any agreement you’ve created, so you need to be prepared to pay for some of the lawyer’s time if you go this route.
Saving Money: True or Not True? The biggest plus to representing yourself in a divorce? You may save money on legal fees. I say “may” because if you lose your case, it might be possible for the other side to ask the judge to make you pay their legal fees. Also, if you end up settling a case without a lawyer looking it over, you might have problems later on (yikes, did you remember to put wording in about what happens to all that joint debt?) and need to hire a lawyer to make the agreement do what you want it to do.
Pro Se Works When a Case is Simple Being self-represented will save you money in cases that are relatively straightforward: for example, in a divorce without children, without real estate and without significant assets such as retirement plans. However, family courts are usually still designed for lawyers (unlike small claims courts, which are designed for self representation). These days, with the high number of pro se litigants, courts are beginning to become more user-friendly. There are also resources to help you navigate your way through the system, such as books on self-representation and online resources for your jurisdiction (legal-aid websites are often great resources).
Pro Se? Use a Lawyer’s Secret Weapon Half of what I do as a lawyer for my clients is outlining and working through a roadmap or game plan for what their next steps are going to be. Without a roadmap, any litigant will feel overwhelmed by the deadlines, the papers, and the procedure of conducting a divorce. It’s all completely new and completely bizarre. Doing it on your own without a roadmap is like being asked to file your taxes in another country using only an abacus. A roadmap gives you confidence.
The huge boost hiring a lawyer can give you is often just the confidence they will impart because they know (and aren’t terrified of) the next step. When you’re pro se, you need to make sure you know the next step, and the next and the next.
How do you do this without a lawyer? You’re going to have to learn how the court handling your case works. Legal aid, government, and some courthouse libraries offer helpful guidelines to the process. Ideally, you need to find resources that explain how to make a legal file, use a calendar so you don’t miss deadlines, and make a trial book will give you the ability to see the trees and the forest.
If you're pro se, you need to develop a roadmap for litigation. Write out the steps you need to take and mark them in both your calendar and your litigation book. If your case is relatively simple, if you have the right resources, if you’re well-prepared and organized, and if you know when to use a lawyer for advice along the way, you might be a good candidate for pro se representation.
- See more at: http://www.divorcemag.com/articles/successfully-pro-se#sthash.D1k0pjvR.dpuf
So, how do you hire the best family law lawyer? There are different kinds of family law lawyers.
There is the litigator. The litigator is aggressive, thinks on his feet, won't back down and will work hard so that you win. Only problem is, sometimes you don’t win. And the cost of a trial can be astronomical, sometimes $5,000 to $10,000 per day of court. On the other hand, when choosing your lawyer, you will want someone who knows the ins and outs of litigation. Isn't it wise to have the litigator's courtroom horse power under the hood just in case?
What about the settlement lawyer? This lawyer understands you and gets your case. And she also understands the other side. She's a smooth negotiator who’s going to make sure the other side thinks they are going to win too. Win-win is her goal. She's’s a master of the meeting, of artful wording and making everyone feel good. She probably is an experienced mediator too. Only problem is, is she any good in court if the other side doesn't want to talk?
What about the collaborator? The Collaborative Lawyer works with you and with everyone else to get the best result. He'll work with a financial advisor, a child expert, an appraiser. You’ll have the benefit of a team working to get your interests front and centre. And he'll work collaboratively with the other side so that they can become part of the solution, not the problem. The collaborator will draw options from a broader circle than the close purview of the litigator whose only goal is to win. But can the collaborator stand up and argue your case if need be? Can he call the other side’s bluff and go the extra mile when the other side refuses to collaborate?
A good lawyer will be able to talk about the advantages and disadvantages of litigation and settlement options such as negotiation, mediation and collaborative law because that lawyer has been there and done that. A lawyer who knows what is happening in Court, has a track record of settling cases and who is a certified Collaborative Lawyer is your best bet.
Start with a lawyer who understands all your legal options -- from litigation to mediation and everything in between -- because that lawyer has experience with each of those options. Then, work with that lawyer to choose the course that best suits you and your case