You may have heard about it in the news in the context of resolving international or labor disputes or during the government shutdown. Or you may know someone who used a mediator at court or for a divorce.
What is mediation?
Mediation is a voluntary process where the parties negotiate in the presence of a neutral party in an attempt to resolve a grievance or reach a settlement or compromise. As a mediator, I am there to assist the parties in the process, as the neutral party. It is my job to make sure that everyone is heard and to help you, the parties, explore your interests and figure out, what interests you may have in common. Once you’ve done that you can begin to generate ideas that could help you resolve your dispute, we call these “options”… thought of by the public as brainstorming ideas. These options are then tested and explored in the process. Oftentimes, parties will need to research those options to see if they are viable. Once the options are researched and explored, they may then be incorporated into an agreement. As a mediator, I do not make decisions for you or tell you what to do. Any agreement that is reached is yours.
In the context of Divorce Mediation, there are specific areas that need to be addressed in every agreement. In order to get a legal divorce, eventually you will have to go before a judge, but it is easier and faster if you have the agreement ironed out before you file anything with the court. As an attorney, I can draft whatever agreement you reach; however, I would advise that each party engage their own attorney to review any binding or divorce agreement before it is signed so each party is fully aware of all of their legal rights.
Elder and Adult Family Mediation
Mediation can also be helpful in other situations where the courts need not ever be involved. For instance: Do you have an elderly family member that some in the family believe can no longer live alone? Do you have a family member that you haven’t spoken to in months or years because of a falling out or because of a dispute in settling your parents’ estate? Elder and Adult Family Mediation can help your family find solutions to your problems so that you can move forward as a family.
Do you have a neighbor that you just can’t get along with? Perhaps you can reach some understanding that will help you live near each other better, in a more harmonious way. These agreements can be binding or nonbinding,depending on what the parties wish.
Conflict causes stress in all of our lives, but you can learn how to reduce that conflict so that you can move forward. As I said, mediation is a process. It is often a difficult process, because you will likely need to address some difficult questions, in the end, however, it can be far more productive in the long run than “winning” in court. With mediation, you can resolve your conflict far more quickly and likely for less money than litigating a case in the courts.
Mediation is a voluntary, confidential process for resolving disputes outside of court. As a mediator, I am a neutral party that facilitates the process for negotiating parties. Examples of common types of disputes that can be mediated:
- Divorce/Child Custody- Note, in order to obtain a divorce or have a custody or paternity order you must go to court, but if you reach an agreement prior to trial or even prior to filing a petition, you can save some time and money.
- Family – Planning for care of parents, disputes over family owned property or businesses, sibling disputes, parent/teen disputes
- Neighborhood Disputes- interpersonal relationships, roommate problems, property boundary disputes, noise/animal complaints, etc.
What is Collaborative Law?
When I tell people that part of my practice is collaborative law, I often get a blank stare; followed by this question: “What is collaborative law?” Collaborative law is a process where the parties, including the attorneys agree at the outset that their goal is to resolve their dispute without litigation. It is similar to mediation in that a neutral is used to facilitate the discussion, but a collaborative law process has some traits all to itself.
Trademarks of a Collaborative Process:
- The attorneys in the process are trained in collaborative law and go into it with a different mindset than attorneys that are not. As attorneys it is our job to provide our clients with zealous legal representation whether we are working in the collaborative law context or not. In the traditional legal framework, the lawyers do the negotiating and the clients may or may not be in the same room with the lawyers. In the collaborative law context, the attorney’s main role is to advise and support the client in their discussions, keeping in mind the clients’ stated objective in seeking to reach an agreement outside of litigation. Here the parties do the negotiating with the assistance of counsel at the table;
- The attorneys and the parties are all at the table with the neutral “coach” who is a mental health professional. The coach is there to keep the discussion on track, deal with any emotions that may derail the process. The coach is an invaluable person to have at the table and allows the attorneys to focus on the substantive issues with their clients;
- Other neutral professionals may be brought into the process (i.e. an accountant to work out the financial details or a child specialist in a divorce context). By using a trained neutral financial professional, the parties can rely on the information given knowing that the financial professional is not taking sides, simply presenting different alternatives for the couple to make informed decisions about their futures;
- The parties agree to voluntary discovery at the beginning. The parties are encouraged by their attorneys to be transparent regarding any and all information that is material to the discussions. There is not traditional “discovery” as one would have to go through in a litigation process, which takes time and money for the lawyers to draft the requests and take depositions;
- Everyone goes into the process with the knowledge that should the parties decide they cannot reach an agreement and wish to litigate, then the attorneys involved must step aside and each party must find new counsel. You can be certain that the attorney representing your spouse that has been sitting across the table from you will not be cross examining you in the event of a trial if the collaborative process breaks down.
How expensive is Collaborative Law?
Another common question I am asked, with all those professionals involved how expensive is collaborative law? It is difficult to say because every case is unique. A collaborative process may be more expensive than mediation, but perhaps not. In mediation, though the attorneys are likely not present at a divorce mediation session for instance, it is advisable that each party have their own attorney for consultation to advise them and at the very least review whatever agreement is made before it is signed. In a mediation, the parties would also likely need to consult a financial professional for tax implications regarding certain decisions made in a divorce. Litigation takes a significant amount of time and often numerous hearings before trial if no agreement is reached prior to trial. Litigation can also often cost upwards of tens of thousands to hundreds of thousands of dollars. In the long run, the true “cost” of a litigated case would likely be far higher than a collaborative law case. In litigation, the parties take positions and often stick to them. The animosity between the parties often grows throughout the litigation. There are depositions, other discovery and experts on both sides and the only people that make out in the end are usually the paid professionals. The collaborative process gives the parties the opportunity to discuss and resolve issues together with the support of counsel and other professionals. Similar to mediation, collaborative law allows the parties to focus on attacking the problems/issues and not the other person, but with additional support.
Welcoming cases in the following areas of law, however this is not a specialty practice. Should you have other civil legal matters, that you wish to contact me regarding, please do so.
- Estate Planning (Wills, Trusts, Powers of Attorney, Health Care Proxies)
- Probate Estate Administration
- Family Law – Divorce, Child Custody, Separation Agreements, Paternity Actions, Guardianships
- Real Estate Seller Representation (Negotiation, Seller Document Preparation, Assistance with Title Issues, Etc.)
- Purchase and Sale Drafting/ Review
- Real Estate Title Search and Review
What is limited assistance representation?
Limited assistance representation (sometimes called “unbundling”) is a way that an attorney can help you with part of your case while you do the rest of your case.
- You can consult with an attorney to prepare or review your paperwork, but attend the hearing yourself;
- You can represent yourself through the whole case, and periodically consult with an attorney who can coach you on the law, procedures and strategy;
- You can do the preparation yourself and hire an attorney just to make the court appearance for you;
- You may want to do your own investigation of the facts (“discovery”) and ask the attorney to assist you in putting the information in a format which is useful to the court;
- You may ask the attorney to be on “standby” while you attend the settlement conference yourself.
With limited scope assistance, you may be able to handle the whole case yourself, except for a few technical areas where the attorney can help you. It really is between you and the attorney how much of your case you hire them to do. If you do this, it is important to keep returning to the same attorney. Otherwise, you’re paying a new person to get up to speed on your case each time that you consult.
Some areas of the law are extremely technical and it is rare for non-attorneys to effectively handle them. Among these are pension rights, stock options, and business interests. You will almost certainly need the assistance of an attorney if your case involves any of these issues.
Why it is important to discuss your case thoroughly with your attorney?
It is important to thoroughly discuss all aspects of your case (even those which you think are simple) with your attorney before deciding which parts you want to do yourself and which ones the attorney will assist you with. It is equally important to realize that there may be important issues presented by your case that you aren’t even aware of. You could be at serious legal risk about an issue you don’t even realize exists. If you don’t discuss them with your attorney, how will you know?
Never make assumptions about the law which applies to your case. The law shows you’ve seen on TV are rarely accurate, and just because you’ve “seen it on TV,” doesn’t mean it is correct, or even “legal.” The only way you know this is to talk it over with a qualified attorney. Sometimes new issues will pop up after your case is started. If they do, it is important to advise your attorney and discuss them, so that you know the potential legal consequences to you. Remember that your attorney can only advise you on matters you tell him/her about, so it is essential that you provide complete information about your case.
Remember, you and your attorney are working as a team. That means good communication and a clear understanding of each person’s assignments is essential.
Caution: not all cases are appropriate for Limited Assistance Representation, that determination must be made on a case by case basis after meeting and reviewing your issues.
- massbbo.org– lookup MA attorney info and disciplinary history
- massclc.org– contains information regarding collaborative law
- mediate.com– find articles and information regarding mediation
- collaborativelawnh.org– contains information regarding NH Collaborative law
- masslandrecords.com– lookup MA land records
- nhdeeds.com– Lookup NH land records
- sec.state.ma.us– Mass Corporations Division corporate lookup