Choose Mediation

Divorce Mediation

Mediation is a method often chosen by divorcing couples who wish to maintain an amicable relationship with each other throughout the process, and avoid the hostility and expense which often accompany litigation. The mediator guides participants through the issues that will be included in the divorce agreement so that when the mediation is complete, participants will have the information they need to finalize their divorce.  

These are just some of the benefits of choosing to mediate your divorce:

• Participants tend to adhere to the terms of mediated agreements vs. litigated judgments
• Adherence to agreement terms minimizes or eliminates future litigation 
• Participants can maintain amicable relationships with each other post-divorce
• Participants can consolidate expenses by jointly hiring any needed professionals, such as appraisers, financial neutrals, or child development specialists
• Children avoid exposure to the conflict associated with litigation
• Participants have more flexibility in negotiating alimony, child support, and asset valuation and division, than would be available through litigation
• Participants can establish a practical parenting plan that meets the children’s needs 

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Cohabitation Agreements

When unmarried individuals plan to share a household, they may first wish to create a written agreement regarding their respective rights and responsibilities.  A cohabitation agreement is usually intended to become a contract, which does not require any Court intervention unless or until enforcement is sought.  Participants choose mediation to negotiate their cohabitation agreements so that their concerns and wishes can be discussed in a manner which fosters their intent to amicably cohabitate.  Some of the cohabitation agreement issues commonly discussed are:

• Division of day-to-day household responsibilities
• Respective financial contributions to household expenses
• Terms relating to the purchase, ownership, rent and/or debts relating to the real estate
• Disposition of any joint assets or debts if cohabitation ends

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Same Sex Couples

In Massachusetts (and now through the United States), same-sex couples have full marriage rights. This has created a great benefit, one of which is that the rules of divorce and inheritance now apply to same-sex couples. However, the same rights are not available or recognized in every state. Understanding these differences is important when addressing the needs of same-sex couples.

Some same-sex couples choose to not marry, just as some opposite-sex couples. Mediation is an optimal way to address ongoing relationship agreements as well as termination of marriage / dissolution of relationship issues between same-sex couples who decide to break up.

Throughout the mediation process, many issues may be discussed including:

• Same Sex Marital Mediation
• Domestic Partnerships
• Civil Union Agreements
• Child Custody
• Cohabitation Agreements

Same Sex Marital Mediation: Mediation is an excellent way for same-sex partners who are married to come to agreement about the terms of their marriage. This can be done with mediation services provided by a marriage mediator as a neutral facilitator in a private setting either before the marriage or after the marriage has commenced with a postnuptial agreement.

Using mediation has the benefit of discussing issues face to face in a private setting with a facilitator trained in the issues of marriage and divorce. Mediation can prevent misunderstandings from developing, and help partners and spouses become clear about their goals and expectations.

Domestic Partnerships: In some countries (and formerly in some states in the United States), same-sex marriage is unavailable, but couples are able to enter into domestic partnerships. The laws regarding what this means vary depending on where the partnership is registered. There are some couples still in a Massachusetts domestic partnership who have chosen not to marry. These couples can use the services of a family mediator to help them come to decisions as to the terms for their relationship. This can be memorialized in a domestic partnership agreement.

Civil Union Agreements: Massachusetts is one of the states permitting full marriage rights to same-sex couples. There is therefore no Massachusetts civil union under Massachusetts laws. Other countries have enacted civil union statutes that incorporate some or all of the laws relating to “marriage” under a different name. A couple that wishes to further define the terms of their civil union can work with a family mediator to facilitate their discussion, explore options, and come to agreement. An agreement created during marital mediation can help limit conflict and litigation in the future.
 
When couple wishes to dissolve their civil union, mediation is an excellent way to come to terms without resort to court litigation. In a private, confidential setting, with the help of a family mediator, the partners can address concerns, develop solutions, and come to agreements.

Child Custody: A significant and growing proportion of same-sex couples, both women and men, have children in their households. When their marriage or cohabitation ends, difficult problems and conflicts may be raised about custody, and sometimes, parentage.
 
Same-sex partners who value the interests of their children will first try to address parenting issues, including support, visitation, and custody, outside of court. The benefits of child custody mediation for the children are enormous. Using the services of a family mediator will be a good step for a couple to address the needs of their children and their future loving participation and connection in their children’s lives.
 
Cohabitation Agreements: Same-sex couples choosing to live together without marriage do so for all sorts of reasons. While some of these couples eventually marry, or enter into civil unions in other states, some do not. Although Massachusetts does not have “palimony” laws, break ups between cohabiting couples can be very messy, leading to protected and complex litigation.

Cohabiting same-sex couples may choose to make written agreements. These can address the day-to-day duties of their living together. In addition, cohabitation agreements can determine what happens if they break up.
 
If a cohabiting same-sex couple marries, the cohabitation agreement may no longer be valid or enforceable. A prenuptial agreement will be necessary if they wish to vary the terms of Massachusetts laws pertaining to marriage. A family mediator is in an excellent position to help the couple formulate a cohabitation agreement, and in the case of later marriage, a prenuptial agreement, if that is what the couple wants.

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Separated Spouses Mediation

In Massachusetts, we have an action for separate support, which is similar to what other jurisdictions may refer to as “legal separation.”  A separate support filing results in Court orders for essentially the same issues as in a divorce, including financial support, parenting plan and other child-related matters, division of assets and liabilities, health insurance, etc., although the parties live separately and remain legally married.  Some of the reasons participants choose to mediate their separate support actions include:

• Participants wish to memorialize and make enforceable their terms of separation while working towards reconciliation
• Participants may wish to stop living as a married couple but have religious or personal reasons for not wanting a legal divorce
• Participants tend to adhere to the terms of mediated agreements vs. litigated judgments
• Adherence to agreement terms minimizes or eliminates future litigation 
• Participants can maintain amicable relationships with each other
• Participants can consolidate expenses by jointly hiring any needed professionals, such as appraisers, financial neutrals, or child development specialists
• Children avoid exposure to the conflict associated with litigation
• Participants have more flexibility in negotiating financial support, and asset valuation and division, than would be available through litigation
• Participants can establish a practical parenting plan that meets the children’s needs 

Click here to learn more about the benefits of mediation.

Elder Mediation

Families often find themselves in conflict over the care of an elderly parent. A parent or other elder family member may wish to remain independent, despite impairment to the elder’s decision-making capacity and ability to handle day-to-day household tasks. This can place great strain on the family relationships and elder planning becomes necessary.  Mediation is often chosen to assist with elder issues because:

• Mediation allows multiple participants, possibly including the elderly family member, a safe forum to voice their wishes and concerns
• A mediated resolution may avoid Court involvement, unless a guardianship or conservatorship is made part of the plan for specific reasons
• Family members work together towards a practical solution that will meet the needs of the elderly family member
• Post-mediation relationships between family members may be better sustained than in litigation

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Marital Mediation

Marital Mediation (also known as "marriage mediation" and "mediation to stay married") is an emerging and exciting area of mediation that gives couples practical tools in how to save a marriage from divorce. It addresses couples who are having problems, but who wish to stay married. These are people whose first choice is to have a marital reconciliation where their marriage is improved and repaired.

Many divorce mediators have asked themselves if they could have helped a divorcing couple through mediation a year or two earlier, when the couple was struggling but was not yet giving up on their marriage. These are couples who are asking the question "how do I save my marriage and how do I avoid a divorce."

Marriage mediation could be right for you if:

• you are interesed in avoiding divorce;
• you are having marital problems;
• you are committed to each other and want to stay married;
• you wish to reconcile but are struggling with issues that they cannot seem to resolve. 

In a series of marital mediation sessions, the couples identify their presenting issues. The neutral marriage mediator listens, observes their interactions, and provides input. Marriage mediators can see patterns of misunderstandings, miscommunication, and assumptions between the couples that the couple themselves cannot see. In an open and honest way, the marriage mediator uses these observations to work with the couple and help them improve their communications.

Avoiding Divorce: About 50% of first marriages end in divorce, and over 60% of second marriages. Even with these statistics, a good marriage is greatly valued, creating family, good mental and physical health, a history of shared memories, and financial stability.

There are many methods of attempting to avoid a divorce. Marital problems can be addressed by:

• marital counseling,
• marital therapy,
• individual therapy,
• pastoral counseling,
• help from friends and relatives,
• reading books on marriage,
• visiting websites,
• and going to marriage improvement seminars.

All these are useful to help answer the question “how to save my marriage” and to set the stage to permit marriage reconciliation to occur. Marital Mediation (also known as “Mediation to Stay Married”) is a relatively new method to help people improve their marriage and avoid divorce. It uses mediation techniques in a series of meetings with the marital couple and a family mediator experienced in helping couples. Because it is not marital counseling, it is often a more acceptable way to address problems by one or both of the couple. In addition, it is often effective with couples in cases where other methods have not helped.

Marriage Reconciliation: Marital counseling is performed by a mental health professional and involves therapeutic analysis and insights. While very useful to many couples at times during their marriage, often a couple finds that marital counseling does not produce results, despite the skill of the marriage counselor or the integrity of the process.  

Mediation to stay married is a practical method that relies on dispute resolution techniques. If performed by an attorney, the couple can be assisted by legal-based knowledge and options, from which the couple may benefit. Mediators with other backgrounds will bring their special skills, training, and experience to the process. The benefit of marriage mediation is that it can sometimes help people move forward to the next step in their marriage.

Marriage Mediation vs. Marital Counseling: Marital counseling is performed by a mental health professional and involves therapeutic analysis and insights. While very useful to many couples at times during their marriage, often a couple finds that marital counseling does not produce the results they want, despite the skill of the marriage counselor or the integrity of the process.
 
Marital mediation is a practical method that relies on dispute resolution techniques. It is short-term and does not attempt to go deeply into family and personal issues. It is practical, and can often help the couple go forward in their marriage. The couple can address deeper issues, if they wish to, in the future.
 
Often, after marital mediation, deeper issues and conflicts start to resolve, almost by themselves. The couple is more accepting, and has a more realistic view of what marriage is. Marital mediation can be transformative for the couple.The benefit of marital mediation is not that it can or will solve everything, but that it can often help people move forward to the next step in their marriage.

Postnuptial Agreements v. Verbal Agreements: Postnuptial agreements (also known as postmarital agreements) are written agreements made between spouses during their marriage. The aim of a postnuptial agreement is generally to address problems in the marriage that are causing it to suffer. The parties negotiating a postnuptial agreement want to continue their marriage, and are intending that their agreement will help, not hurt, their marriage. Their intent is to create marital harmony and avoid divorce. Postnuptial agreements range from “who will take out the garbage” to the provisions they wish to put into place if their marriage does end in divorce, and the entire range in between. Because it is an agreement made after the marriage, it is called a postnuptial agreement.

Postnuptial agreements are a relatively new area of law. Enforceability issues are still being addressed on a state-by-state basis. The soundness of postnuptial agreements relies on the good faith and fair dealing of each of the parties. If a party wants to use the postmarital agreement for his or her advantage in a divorce, it might not be an appropriate vehicle for a couple.

It is likely that under the correct facts and circumstances, a properly conceived and fairly written postnuptial agreement can be valid in case of a divorce. More importantly, a postnuptial agreement can set the couple on a path towards reconciliation and clarity over issues that are troubling them and can help prevent divorce.

Negotiating a postnuptial agreement is just as sensitive (or more so) as negotiating a prenuptial agreement. The terms of a postnuptial agreement should be to be customized to each couple to address their specific concerns. Mediation is an optimal way for a couple to self-determine the terms of their postmarital agreement. Your marital mediator can guide you through the elements required and can assess your readiness to undertake these written commitments.

Some couples in marital mediation may prefer not to have a written agreement. They value the verbal understandings gained in the marital mediation process, it is enough for them, and they see a written agreement as being too intrusive to their personal relationship. Marital mediation can accommodate both preferences.

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Estate Planning

Estate planning mediation is often used by elderly or terminally ill individuals wishing to clarify the underlying needs, interests, and goals of their estate plans to their relatives.  Estate planning mediation is also used to work out the complexities of multiple marriages, blended families, unmarried families, and relatives with special needs.  Mediation is helpful for estate planning purposes because:

• Mediation provides a structured environment with a facilitated discussion for multiple individuals to address difficult issues
• The individual creating the estate plan can answer questions and challenges in a safe forum
• All participants have a chance to both contribute to the conversation and hear what others contribute
• Professionals, such as accountants, attorneys, or financial planners, may be invited to a mediation session to disseminate and explain information about complex assets
• The resulting estate plan is less likely to be challenged in the future

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Pre & Post Nuptial Agreements

Prenuptial agreements are contracts created between two individuals in anticipation of their future marriage to outline their respective rights and responsibilities as to assets, liabilities, and financial support in the event the marriage ends in divorce or one of the couple dies after marriage.

Postnuptial agreements are written terms created by a married couple, generally outlining short-term practical steps they will each take going forward with the goal of reconciling their relationship and avoiding divorce.  Postnuptial agreements may or may not become enforceable contracts, depending on the circumstances of the specific case.  The terms of postnuptial agreements usually derive from marital or marriage mediation, where the couple works to improve their communication and relationship with each other in order to stay married.

Mediation is a helpful process for negotiating prenuptial and postnuptial agreements because:

• Participants learn about their rights and responsibilities as spouses
• Participants create customized plans based on their respective goals and concerns
• Participants can have difficult conversations in a structured, neutral environment

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Child Custody

Child custody is a loaded term.; Now more than ever, both parents generally want to have significant time with their children after divorce. That is why in Massachusetts, the more modern term for child custody is; parenting plan.  

A Parenting Plan is a written plan outlining:

• the responsibilities of each parent for the children,
• where the children will primarily reside and
• when they will be with each parent.

Divorce mediation in which mediation for child custody is a topic provides an excellent setting where an open, productive, and facilitated discussion as to the best living arrangements for the children after the divorce can take place.  Mediation is a place where parents can come together and plan for their children.  Decisions about where their children are will be decided by the parents, not the courts.  Parents can communicate with each other with the assistance of the mediator, about their concerns, possible parenting plans and schedules.  Child custody laws can be discussed in an open and non-defensive way.
 
In mediation, the concerns about child custody can be defused and the parents can begin to think of the best plan for their children, bearing in mind the parents’ own needs and schedules, and their desire to have a quality relationship with their children. In cases where custody becomes an issue, child custody mediation can be used as an alternative to court hearings, costly appointments of guardians ad litem to investigate, and appointments of attorneys for the children. Everyone benefits from mediating child custody issues.

CHILD REMOVAL (MOVING OUT OF STATE)

Sometimes in a divorce action (or at a time subsequent to the divorce), a parent will want to move out of state with the children. This is termed “removal”. Because this affects the parent who remains in Massachusetts (and the children’s access to that parent), standards to permit child removal are quite high. 
 
The issue of child removal from the Commonwealth is an issue well suited to resolution in mediation. The trained family mediator experienced in child custody mediation can lead a discussion between the parents as to the options and the proposed the parenting plan after a removal. This can lead parents to discover a resolution regarding child removal without litigation.

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Unmarried Parents

If unmarried parents have children (whether or not they are living together), parenting, and support of the children can raise important and complicated issues.  An experienced family mediator can help you come to decisions about the practical considerations of raising children out-of-wedlock without resorting to litigation.

Mediation for unmarried parents can assist with decisions regarding:

• Child Support
• Parenting Plan
• Establishng Paternity

Each of these is discussed in more depth below:

Child Support:

A non-residential parent will typically be responsible for child support. In determining child support for unmarried parents, the Massachusetts Child Support Guidelines apply. In fact, the Guidelines apply equally to determine child support for unmarried couples as they do for married parents. A family mediator can help an unmarried couple come to terms on the child support obligation that best serves them.
 
Parenting Plan:

Child custody and parentng plans for unmarried parents is an important issue. Unmarried parents (except in extreme situations) have the right to maintain a relationship with their children through parenting time. While the presumption is that the mother has legal custody (decision making authority) when the child is not born of a marriage, the parties can themselves agree to joint legal custody.  The parties can also agree to a parenting arrangement for parenting time that best serves their and the child’s needs and values. Having this conversation between unmarried couples facilitated by a trained family mediator is a great step in maintaining good will and open communication between parents, which will greatly benefit their children.
 
For more information about parenting plans, see the Model Parenting Plans released by the Massachusetts Probate and Family Court Department.

Establishing Paternity:

Establishing paternitycan be done through a court action, which formalizes a father’s relationship to a child born out of wedlock.  A father and mother may establish paternity by agreement by acknowledging the father’s parentage in a Voluntary Acknowledgment of Parentage, to be registered in court.  
 
A family mediator can be an excellent neutral facilitator of the discussion between the two parents, and can help them formulate an agreement that well serves their child and reduces future conflict.

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Family Business Mediation

Family businesses often create a high level of conflict, resulting in difficult business and personal issues. These disputes often have the quality of a divorce. In family held enterprises, especially those where the second generation has taken control, there may be ongoing resentments and inequalities of contribution that result in family business conflict. In addition, balancing the transfer of wealth between the active participants and the family members who are stakeholders but not working in the business can cause great conflict and resentment.

Managing family business conflicts in a family business is an ongoing and difficult task. While a family business can be of great benefit to members of a family, it often suffers from conflict in aims, goals, participation, and contribution, resulting in damage to the business and to family relationships. Mediation is an effective method to provide family business conflict resolution in order to help family members, both active and passive participants in the business, come to terms about goals, structure, control, and money issues.

Throughout the family business mediation process, many issues may be discussed including:

• Family Business Succession Planning
• Selling the Family Business
• Divorce and the Family Business
• Closely Held Businesses and Partnership Dispute Resolution

Each of these issues in discussed in greater detail below:

Family Business Succession Planning:

As in any business, in a family business, transitioning the business from one generation to the next is a complex and difficult process often resulting in conflict among family members. Family business succession conflicts are heightened by the particular nature of a family business. When the elder generation relinquishes control of a family business, there is often a struggle for control between members of the next generation. This type of conflict, because it is relates to family relationships and histories, lends itself to the mediation process with an experienced family mediator who has a deep knowledge of business and finances.

The transition of a family business to a new generation often causes strains and conflicts amount the family members.  Some of these challenges are:

• A possible divergence of view as to whether the family business should continue or not.
• Whether the plan for liquidation is sound and will optimize the value for the family member stakeholders.
• Possible disputes about the sharing of proceeds between family members.
• Tansitions away from the family business can be emotional and difficult for the family participants.

Mediation can help to restore family relationships, heal wounds, break through impasses, and work on concrete structures and agreements that help the family members go forward with their goal of operating a profitable business smoothly and without unnecessary family conflict. Diverging interests can be reconciled or accommodated so that conflict is reduced.

Because family mediators are experts in people, family mediators can help recognize and reconcile differences in values, temperament, family history, business outlook, financial knowledge, (or lack thereof) which underlies family business disputes. The setting in mediation (rather than in litigation) greatly benefits the family, and can result in transformation of family relationships. Mediation is well suited for resolving these difficult family business issues.

Selling the Family Business:

In family business, often a dispute arises as to whether to sell the family business, or retain it within the family. Selling a family business affects the active members of the business, and also the passive stakeholders who rely on the business for financial support. Sometimes family businesses are sold because of unresolved conflict and contention. These businesses might have been ongoing and profitable if the family participants and stakeholders could have resolved their problems.

The interests of the family members who wish to sell the business and those who do not can be reconciled and planned for in family mediation. The terms of the sale and its effectiveness in securing value for the family members can be addressed in mediation. Family mediation can assist the family members in understanding and managing the transition, which can be a difficult personal, financial, and professional transition for the family stakeholders.

Divorce and the Family Business:

Divorce is an unfortunate reality of life. In the United States,about half of first marriages and over 60% of second marriages end in divorce. When a family member active in a family business divorces, there are financial and emotional implications and challenges, which can be complex. These can often be resolved through family mediation.

Family Mediation is an effective method to address the issues in control, buy-outs, and sharing of marital estate that arise in divorces. Mediation can help the family preserve relationships with the former in-law, who is likely to remain in relationship with the family for the rest of his/her life due to the presence of children.

Valuation of the divorcing family member’s share in the business can be addressed by mediation, using the reports and assessments of valuation experts and appraisers. In face-to-face mediation sessions, the financial reports and information can be presented, understood, discussed, and evaluated. This can avoid a lengthy and costly valuation dispute that could end up in costly litigation personally damaging to family members.

Closely Held Business and Partnership Dispute Resolution: 

A closely-held business and a partnership, even if the active participants are not related by blood or family, is very much like a family. When partners and closely-held business owners experience conflict and have a dispute they are unable to resolve, their relationship is very much like a marital dispute. For this reason, meeting with a trained family mediator with expertise in business and finances can be a good step towards resolving the dispute.

Partners may no longer be talking productively to each other, although working in the same location day after day. Their mutual dysfunction can cause pain on a daily basis. The conflict may cause the business to fail. There is painful fallout to the spouses and families of the partners, and to the employees of the business. These conflicts, if unaddressed, can spin out into litigation.

A family mediator can be brought in to facilitate a process of discussion and negotiation, leading to resolution and possibly reconciliation. The result can lead to a positive outcome for the partners, with greater understanding and a plan as to how to move forward.

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Probate Mediation

Sometimes issues arise during the probate of an estate where there is no clear-cut legal solution. There may be various competing interests, including surviving family, friends, caretakers, and possibly educational or charitable organizations.

Mediation can be an ideal process to resolve probate disputes for the following reasons:

• Mediation avoids a protracted litigation process which may deplete the estate assets
• Mediation can resolve or clarify ambiguities or omissions from the decedent’s Will
• Mediation may help preserve the relationships between the survivors

Click here to learn more about the benefits of mediation.