DIVORCE MEDIATION

by Marion Lee Wasserman

An informational article originally prepared by Ms. Wasserman for a workshop presented by her at the Harvard Medical Center of Harvard University.

How Does Divorce Mediation Work?

In divorce mediation, the couple sits down together in a cooperative spirit instead of using lawyers to one-up each other in an adversarial contest. To their great benefit, the couple avoids the cost, inefficiency and bitterness of the traditional divorce process. Following mediation ground-rules agreed upon at the outset, the couple uses the mediation process to reach agreement on issues requiring resolution for their divorce. The mediator does not judge the couple or act as a therapist. The mediator encourages the couple to engage in balanced, forward-looking negotiation and to achieve compromise that is fair and practical. An experienced, qualified mediator knows what issues need to be covered in a divorce agreement and guides each couple accordingly.

How Does the Actual Divorce Follow?

Part of the mediator’s role is to put the agreed-to terms into a written agreement, so that the couple can file the agreement with the appropriate court. In general, provided the agreement is “equitable” and provided it is consistent with the best interests of any children of the marriage, the agreement will be approved by the court and incorporated into a divorce decree. Ms. Wasserman is knowledgeable regarding court-applied standards of what is “equitable,” enabling her to assist the couple appropriately as they negotiate matters of property division, support and parenting.

Should the Mediator Be A Lawyer?

If the mediator is a lawyer, the mediator is permitted to prepare the agreement — the so-called “Separation Agreement”– in its complete and final form. Non-lawyer mediators, and some lawyer mediators, prepare a memorandum rather than a final agreement. The couple then asks a lawyer to put the memorandum into court-ready form, containing clauses covering certain legal points not included in the memorandum. The couple should be aware of this distinction, and the couple should also make certain that the mediator they select — whether lawyer or non-lawyer — has a thorough knowledge of and understanding of divorce law and procedure, because divorce mediation takes place within a legal context and divorce agreements have legal consequences.

Will Husband and Wife Each Need Their Own Lawyer?

The mediator is acting as a neutral third-party, not as legal counsel. Whether or not the mediator is a lawyer, each party is advised to have individual, mediation-friendly legal counsel for consultation on issues of special concern and for looking over the agreement in order to suggest any necessary changes. If the lawyer is present in the background, and if the lawyer is indeed mediation-friendly, then the lawyer’s involvement will be efficient and limited and will serve to enhance the mediation process.

Will the Mediator Really Be Neutral?

Each party to the mediation will have an opportunity to explain his or her individual perspective on the issues. It is part of the mediator’s role to allow time for this, to listen attentively to each party and to help the parties listen to each other. Ms. Wasserman has extensive training on the subject of neutrality, including gender neutrality, and she knows how essential it is that she not judge the parties or choose sides. She appreciates the emotional and financial complexities of each couple’s situation and uses the mediation process to gain an understanding based on real issues, not surface impressions.

Will the Mediator Answer Financial Questions?

Although the mediator is not acting as an accountant or financial advisor, the mediator should be knowledgeable about tax and financial issues that arise in connection with divorce. Ms. Wasserman has the knowledge and experience to answer many questions in these areas and also provide appropriate referrals to other professionals, as specific issues arise that require outside expertise. Such professionals may include accountants, business or real estate appraisers, pension actuaries or financial advisors. One advantage of the mediation process is that the couple uses outside professionals on a limited, as-needed basis, in order to gain specific information or advice contributing to positive negotiation — a major departure from the costly, inefficient use of professionals as adversarial experts in traditional divorce contests.

Copyright © 2002-2011 Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes. This article is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as establishing an attorney-client relationship.