Guide to Boston Divorce Mediation
While Massachusetts is statistically one of the states in the Union with the lowest divorce rates in the United States, a very large number of couples in Boston and surrounding areas including Needham and Brookline still face the very difficult problem of divorce. Divorcing couples should understand their options before making a rash decision to immediately file for divorce.
Boston Divorce cases are either “contested” or “uncontested”. Divorce Mediation serves to help divorcing parties file an “uncontested” case which is called a “1A” case in Massachusetts (for the statute such actions are filed, M.G.L.A. c. 208, Sec. 1A). Uncontested cases take much less time to finalize than contested cases. Here’s why: there is a six-month waiting period after a judgment of divorce is entered under an uncontested “1A” divorce. Although there is only a three month waiting period following a judgment of divorce under a contested divorce filing before the divorce becomes absolute, parties must wait six months before the court will allow them to file their agreement in a contested case and then the three month waiting time begins after that. In essence, uncontested cases usually take just over six months to complete and contested cases will take at least nine months to complete.
Scheduling an appointment with a qualified Boston divorce mediator right away not only will help get the process moving, it will help get the process moving in the right direction. The right direction in any divorce case is to reach an amicable conclusion without spending a lot of money on lawyers. You may be shocked to learn that parties who argue over what ultimately are inconsequential or unimportant issues may spend over half of their liquid assets on divorce attorneys during a divorce case. We have been involved in cases where parties spend into the millions of dollars on divorce lawyers, experts involved in the case, and other associated expenses. Sometimes extremely high attorney’s fees incurred in a divorce cannot be avoided, for example when one party is hell-bent on litigation and refuses to settle. But for the majority of people faced with the proposition of divorce, both parties have some level of agreement and are willing to give a cooperative and collaborative approach a try. An experienced divorce mediator can help bring the parties together on issues that they do not agree upon.
It is estimated that parties litigating a divorce case spend a combined $7,000 – $10,000 on lawyers and associated expenses. This is probably an underestimate and this amount is certainly higher for couples with substantial assets. Parties that amicably resolve their case through mediation nearly always spend less than $4,000 on the entire process, leaving a significant amount of money to the parties and their children.
When faced with divorce, it is imperative that couples take a moment to think about the consequences of heading into “litigation mode” and starting a divorce. Litigation has its benefits in some cases, but should be avoided if at all possible in the majority of cases. Litigation is expensive, time-consuming, and rarely ends any better than mediated agreements will result at the early stages of a divorce case.
In Boston, which lies in Suffolk County and is the largest major city in the county, Norfolk County and Middlesex County in Massachusetts, it is estimated that nearly ten thousand divorce cases are filed every year. A significant number of these cases are “uncontested” cases, but many more can and should be uncontested further, many of the uncontested cases that are filed in Boston, Cambridge and Brookline among other cities, are filed within inadequately prepared settlement (also called separation) agreements.
Divorce Mediation Statistics in Boston and Cambridge, MA
Massachusetts divorce rates are some of the lowest in the nation, with less than 3% of the total population filing for divorce. Interestingly, the states that have allowed for same-sex marriages or registered domestic partnerships have the lowest divorce rate by recent studies. According to the 2010 census, the states with the highest divorce rate include Oklahoma, Arkansas, Nevada, West Virginia and Alaska. Nevada appears to have the highest divorce rate for the obvious reason that many marriages are based on an impromptu decision.
The states with the lowest divorce rate include Massachusetts, New Jersey, Connecticut and Vermont among others. Not inconsequentially, these states also are the “smartest” states with the residents having the highest level of education. Massachusetts is also always in the top five rankings of states with the highest income level per capita. Given that Massachusetts is one of the most educated in the country and the per capita income level of its residents are so high, it begs the question, “Why aren’t more divorce cases in Boston, Middlesex and Norfolk County settled by mediation?”
From experience, it is estimated that less than 10% of parties going through a divorce attempt mediation at the early stages of their case. This number is consistent in Boston, Newton, Cambridge, Dedham, Belmont, Wellesley, Sherborn, Dover, and Quincy. Unfortunately, there are no reliable statistics that show how many people choose to mediate their divorce case in any given year. This is largely because mediated cases do not have any notation that a mediation expert was involved when the parties’ separation agreement is filed with the court.
Because we have decades of experience in divorce as mediators, litigation attorneys, appointed pro tem judges, we have a fundamental awareness that an alarmingly vast majority of cases are not mediated.
It is Mandatory for Attorneys to Discuss Alternative Dispute Resolution (i.e. Mediation) with their Divorce Clients
Divorcing parties that hire attorneys must understand that their attorney is required by Massachusetts law to discuss “alternative dispute resolution” with them. An attorney filing a divorce case must file a certification that they have discussed alternative dispute resolution with their client.
Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) states in part:
“…Attorneys shall provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.”
In family law, this means that an attorney is required to discuss mediation with their clients. Other forms of alternative dispute resolution, such as arbitration, are not really applicable.
If your attorney has not discussed mediation with you, hire another attorney. Not only have they violated a state rule, they are doing you a huge disservice by not giving you the opportunity to save time and money by mediating your case.
Tips for Discussing Divorce Mediation with Your Spouse
Talking to your spouse about separation and divorce is one of the most difficult things you can do in your life. Once you decide to divorce, or your spouse tells you they want to divorce, having a quick dialogue about at least two common goals that you have may help ease the tension: (1) You both have a mutual goal of getting the case done as quickly as possible and (2) you both will want to keep your money in your pockets and not give it to someone else. If you have children, a third goal is to make things as easy as possible on them.
Here are some additional tips for discussing divorce mediation with your spouse:
- Seek the advice of a counselor to discuss how to best breach the subject of divorce mediation with your spouse.
- Discuss that you do not have to agree on everything before seeing a mediator. In fact, part of our job as expert divorce mediators is to educate both parties about the law and how the court will likely make orders in a particular case. It would be impossible for you to understand the court’s likely orders and therefore having someone that is experienced in court and knows what the court will probably do is invaluable information. During the mediation process, we educate our clients first and then seek to reach agreements on the issues.
- Give your spouse time to research how mediation works and to learn about the process.
- Be open about finances. One of the biggest contributing factors to expensive divorce cases is lack of trust. Eradicate any thought that you may be hiding things by gathering financial documents and information. You may also start filling out your financial statement early.
What Divorce Issues can be Resolved in Mediation?
Everything. Through the mediation process you can resolve every possible issue that exists in your case, including:
- Identification and division of assets (including “jointly” acquired assets and separate assets);
- Child custody agreements including when each parent will have the children, where the children will primarily reside (or with both parents equally), holiday schedules, vacation schedules, which parents will transport the child when, how medical care will be handled, issues of “legal custody” and so forth;
- Child support payable by one parent to the other (the court will nearly always order child support based on the Massachusetts guideline calculator but parties that mediate their case can choose to deviate from that amount);
- How taxes will be filed; and
- Whether the case will be based on “irreconcilable differences” or some other basis (note: if the case is not based on the “1A” statute and the grounds are for cruel and abusive treatment, incarceration, bigamy, lack of capacity or some other basis, mediation is probably not the right thing for you; however, divorces based on some other legal grounds can still be accomplished in mediation).
This list is not intended to be exhaustive and our separation agreements are typically very detailed and deal with a myriad of other important issues.
Traits of an Effective Divorce Mediation Lawyer in Boston
Mediation is something that occurs in many different areas of law and life, not just divorce law. Effective mediators have several traits in common, and effective mediation processes also follow common traits. The United Nations issued an outstanding “guide” to mediating global conflicts, which applies to divorcing parties quite effectively.
The UN mediation guide foreword provides an effective summary:
“Mediation is one of the most effective methods of preventing, managing and resolving conflicts. To be effective, however, a mediation process requires more than the appointment of a high-profile individual to act as a third party. Antagonists often need to be persuaded of the merits of mediation, and peace processes must be well-supported politically, technically and financially. Ad-hoc and poorly coordinated mediation efforts – even when launched with the best of intentions – do not advance the goal of achieving durable peace.”
The mediation process requires the following from a divorce expert mediator to work:
- The mediator needs to prepare the parties to succeed. Parties need to be advised of the information and documents they will need to bring to the mediation.
- The mediator needs to obtain the consent of both parties to participate openly in mediation.
- The mediator must be impartial. Remember, a Boston divorce mediator is there to advise the parties what will likely result if they went to court and try and get the parties to agree on their disputed issues. Maintaining impartiality is crucial.
- The divorce mediator should ensure inclusivity, which means that both parties participate fully.
- The mediator needs to listen carefully.
- A successful Brookline divorce mediator is skilled in resolving “hot button” issues of dispute.
- When agreements are reached, the best divorce mediators in Boston are able to quickly and effectively draft all the necessary paperwork to resolve the case completely. The longer separation agreements take to resolve, the higher likelihood that the agreements will fall apart.
Tips for Sitting across the Table from Your Spouse when Mediating Your Divorce
When mediating your divorce, it is important to follow these mantras:
- Maintain composure.
- Treat the divorce mediation process like a business meeting.
- Be prepared with facts and documents, and rely on that data in your discussions rather than emotion.
- If you truly cannot get along with your spouse, don’t rule out the mediation process. You can address the mediator, meet separately with the mediator, or conduct your divorce mediation over the internet so you don’t have to be in the same room with your spouse.
- If you need a break, take one. There is no rule that you have to sit and stare at your spouse for any minimum period of time.
- If you have children, bring their picture with you to remind you what’s important.
Alternatives to Face-to-Face Divorce Mediation
Our office provides the ability to handle divorce mediations for parties that are not living in the same city, state, or even in the country. We use the latest video technology to handle mediations using the internet.
Why Choose Boston Divorce Mediator David Wilkinson?
Divorce mediators are not created equal. David is not only extremely thoughtful and focused on your stated goals; he is an extremely experienced mediator and divorce litigator. Mediators that purport to be excellent at resolving divorce disputes should have a lot of litigation experience in order to better understand what a court is likely to do in any given situation.
David prides himself and providing quality service and keeping costs to a minimum. He also is not afraid to think outside the box to achieve results, coming up with alternatives that might not be even possible if a divorce is handled in court. David has served as a private mediator for more than 10 years and was a court-appointed mediator for divorce cases.
For more information about the benefits of mediation, click here. We have offices in Boston and New Bedford and serve all of Eastern Massachusetts, including Plymouth, Cambridge, Newton, Brookline and Arlington.
Please call us today or email us at your convenience.