Mediation May Be the Divorce Option for You and Your Family
In addition to other methods of resolving disputes, Kelly Family Law LLC can offer its clients our experience and skill in mediating their problems. The mediator will assist the parties in settling their dispute in one or more three-way meetings with the parties. The mediator's goal is to help the parties reach an informed agreement that is grounded on a full and fair disclosure of all information relevant to the dispute.
At Kelly Family Law LLC in Newton, Massachusetts, we want to help you find the divorce option that works best for you and your family, to include traditional negotiations, litigation or mediation.
Divorce mediation is a negotiation between spouses who have decided to end their marriage without litigation. It is voluntary and confidential. A divorce mediator is a neutral party trained to help couples resolve the inevitable disputes that arise during divorce. The primary task of the mediation is to produce a fair and reasonable separation agreement.
Several draft separation agreements are usually generated in the process of mediating a final, signature ready document. As draft agreements are refined the parties become fluent in the specific terms and provisions of their agreement. When the parties reach an overall settlement a final separation agreement is prepared.
If the parties are represented by counsel, their lawyers review the final separation agreement before the parties sign it. The final, signature ready agreement incorporates all changes the parties have agreed upon.
I notarize all separation agreements signed in my office, and any other documents that require notarization. I often generate all the required divorce forms and help people fill them out and file them in court. When clients choose to appear in court without lawyers, I also help them organize the paperwork and prepare for their hearing.
Benefits of Mediation
There can be few experiences in life which are worse than living through the breakup of a marriage or civil partnership, and the pain of the breakdown itself is only compounded by long and very expensive legal battles. Family mediation is a method of addressing the problems and issues that inevitably arise during the breakdown of a marriage or civil partnership, in a constructive and collaborative way, and arriving at fair and equitable solutions to what can at first seem to be intractable problems.
At Kelly Family Law LLC, we can help the participants to explore options and weigh up issues, and to make difficult decisions and produce sensible proposals. All of this takes place during a series of confidential and voluntary meetings which are held on neutral ground in a safe and calm environment. Addressing difficult questions in this way avoids hostility and promotes the chances of positive long-term communication, something which is vital if the well-being and upbringing of children are involved.
A huge amount of research into the effects of divorce and separation on children has been carried out, and the studies are unanimous in reporting that the most traumatic element is not, as we might expect, the separation itself, but rather the hostility and conflict between the parents. Children are resilient and can adapt surprising well and surprisingly quickly to changes, including moving out of a house, or suddenly having two homes where previously they had only one. The one thing that children cannot deal with is the conflict, particularly if that conflict is played out at home in front of them. The constant battle between the two people that they love most puts an enormous emotional burden on children, and may place them in the impossible position of having to take sides.
Family mediation during the breakdown of a marriage, the end of a long-term relationship or the end of a civil partnership is a way of addressing difficult questions in a non-confrontational way and on neutral ground. It is about providing means of communication and a blueprint for the future, and for providing for the needs of the separating couple and of any children who might be caught up in the separation. It is also about laying the foundation for effective co-parenting, and doing so in a flexible and focused way which is sensitive to the needs of the participants, and the needs of the wider family.
In certain circumstances, for example where the participants live very far apart, we are able to offer mediation sessions by video link.
The total cost of divorce mediation is usually less than half the cost of one spouse's lawyer in a litigated divorce. The reason is simple. In divorce litigation each party hires an attorney to bargain on his or her behalf. Then each spouse pays his or her lawyer to negotiate with the other spouse's attorney. Then each spouse pays his or her attorney to review and explain what the lawyers negotiated.
By contrast, divorce mediation clients negotiate directly with one another. Through face-to-face negotiations the role of attorneys is limited and legal costs are dramatically reduced. By cutting the cost of divorce, mediation preserves more of the marital assets for the parties and their children after the divorce.
The confidentiality of mediation is protected by Massachusetts law, (Chapter 233, Section 23C). This statute protects any communication made in the course of the mediation. It includes all memoranda, written materials and the mediator's case file.
If the mediation fails the mediator will not become a witness for or against either spouse. In addition, neither spouse is permitted to disclose any confidential communications or materials that were made in the course of the mediation in any judicial proceeding.
Confidentiality under this statute requires that the parties sign an agreement to mediate with a qualified mediator. My mediation contract makes one exception to the rule of confidentiality. That sole exception applies to abuse as defined by Massachusetts law, Chapter 209A. The reason for this exception is that no one can freely negotiate while in fear of abuse.
A spouse who violates a separation agreement after it was found to be "fair and reasonable" in court may be held liable for breach of the contract AND found in contempt of court. Breach of contract can generate financial compensation (including attorney's fees) while contempt of court can generate monetary and legal sanctions- including imprisonment. A separation agreement found to be "fair and reasonable" in court is as enforceable as any other court order, and as a contract.
Every year tens of thousands of ex-spouses return to court to contest some aspect of their divorce. Divorce mediation is a largely self-determined process that encourages divorcing couples to set their own goals and to allocate their own resources. By personally participating in the creation of their own agreement, couples in divorce mediation maximize their control over the dissolution of their marriage. This reduces the probability of post-divorce disputes and increases the likelihood of post-divorce compliance.
When couples achieve a fair and reasonable agreement, their own feelings of frustration and helplessness are often relieved. The greater the ability of couples to work together as parents, the less their children suffer in the divorce. Divorce mediation is not therapy, but it can have therapeutic benefits.
Even after a litigated divorce has begun, both spouses can decide to "freeze" the litigation and mediate their divorce. Divorcing couples who successfully mediate spare themselves and their families the agony that characterizes an adversarial divorce.
Get Started Today
Take the first step today by scheduling a free 15-minute phone consultation with Ms. Kelly or a member of her team. For a confidential consultation please contact us at 617-203-8500 or email us.