Mediation & Conciliation

Below we have provided answers to many of the common questions that we are asked regarding Mediation. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

What is Mediation?

In technical terms: Mediation is a form of alternative dispute resolution where a neutral third party attempts to open and improve dialogue between two individuals in hopes of finding an acceptable resolution to a dispute.

Put more simply, Mediation involves two people hiring an impartial mediator to help them reach an agreement.

In the context of family law, mediation can be used to resolve disputes involving divorce, child custody and support, alimony, division of assets, paternity, and actions for modification.

Why should I hire a Mediator?

Hiring a mediator is a personal decision that should take into consideration the individual facts relating to your case. In some situations, mediation can be a way to reach an agreeable resolution that costs far less than a divorce trial would.

We encourage you to read further about the advantages and disadvantages of mediation to help you decide whether it would be an appropriate forum for resolving disagreements between you and your spouse regarding how to settle your case. For additional information to help you decide if Mediation is right for your read this article on The Divorce Center's website.

What is Conciliation?

Conciliation is similar to mediation but with some significant differences. It is similar because the two parties are working with a neutral person who is attempting to help them reach an agreement. It is different because usually attorneys are present for conciliation. In addition, conciliation takes place while a litigation case is pending, while in mediation typically litigation hasn't begun yet. Finally, conciliators will often report back to the court, while mediation is confidential and privileged.

How do I find a Conciliator?

Many of the Massachusetts Probate & Family Courts have conciliation programs in which the court will appoint a free conciliator to work with the parties at their request. The conciliator agrees to provide a minimum of two hours and tries to assist the parties in settling without a cost. This Court appointed conciliation requires a report to be filed with the court.

Attorney Kelsey has taken the conciliation training and can be appointed through the court as your free conciliator or you can choose to hire Attorney Kelsey directly. By paying for the conciliation you receive some additional benefits. Your time is not limited as with the court program, and we can work on your case until it settles. In addition, we will work around your schedule to accommodate you and your attorneys. Plus you get to choose your neutral professional by reputation instead of being randomly assigned the next conciliator on the list. Click here to e-mail Attorney Kelsey.

Who does the Mediator represent?

A mediator doesn't represent you or the other party, nor does a mediator represent both of you. It is not ethical or practical for a lawyer to represent both parties in a Divorce. In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.

Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests. It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests as an advocate would. Instead, the role of a mediator is to assist the two parties in reaching an agreement that they are both satisfied with, regardless of whether that agreement in the opinion of the mediator might favor one party or the other. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.

What are the advantages of Mediation?

Mediation has many advantages over litigation. It is usually less expensive than negotiating your agreement through two attorneys and it is far less expensive than going to trial. Mediation can also help you avoid the backlog in the courts, allowing for a more expedient resolution.

In addition to these practical concerns, though, Mediation offers something that the Courts do not offer: the chance to resolve your case on your terms. If you are unable to settle your case in Court a Judge, essentially a stranger who will only meet you for a very limited period of time, will make major decisions about your life. Mediation is your opportunity to make these decisions together. After all, who knows what is better for you than you do.

On a related not, Mediation is also an excellent forum for solving issues unique to divorce that our legal system cannot adequately address. As an example, many couples will litigate who will get custody of the family pets. While most judges are not interested in talking about this, a good mediator will be able to give an appropriate amount of attention to an issue that the parties may feel is important.

Finally, privacy is an important concern for many of our clients. Court is a public forum. Understandably, many people feel uncomfortable talking about the breakdown of their marriage to a judge in a courtroom full of strangers. Mediation takes place in a more private and comforting environment, where the parties can set their own pace to better accommodate their own emotional and practical needs.

Are there disadvantages of Mediation?

Mediation is not an appropriate forum for coming to a resolution for everyone. For example, when there is a history of abuse between the parties, mediation often fails because the parties cannot reach the necessary level of trust to mediate their dispute amicably. Furthermore, there are no guarantees that mediation will result in an agreement, which could end up costing you more in the long run. You should honestly evaluate whether you and your spouse are willing to participate in an open process before entering into mediation.

Does it matter if my Mediator is a lawyer?

In Massachusetts, there is no requirement that a mediator be a practicing attorney. However, non-lawyer mediators are not able to perform some of the duties that their attorney colleagues can. For example, non-lawyer mediators are prohibited from drafting a separation agreement, because this is considered the unauthorized practice of law. Couples completing mediation with a non-lawyer often hire an attorney afterward to draft a separation agreement based on the results of mediation, or they draft the separation agreement themselves before going to court. A mediator who is also an attorney can draft a separation agreement that the couple can later take to court when finalizing their divorce. Furthermore, the expertise of an attorney may be useful in your mediation if you require information on other legal issues that sometimes arise in divorce cases, such as tax or bankruptcy issues.

Is there a certification in Massachusetts for Mediators?

In Massachusetts, there is no certification for Mediators. However, there are requirements if you want your Mediation to be kept confidential. Massachusetts General Laws Chapter 233 Section 23C requires three elements for a Mediation to be confidential. First, you must enter into a written agreement with the Mediator. Second, the Mediator must have completed at least thirty (30) hours of training in mediation. Finally, the mediator must have at least four years of experience or be a member of a dispute resolution organization that has been in existence for at least three years, such as the Massachusetts Council on Family Mediation, Inc.

Attorney Justin Kelsey meets these standards and if you sign a written agreement to hire Attorney Kelsey as your mediator then all communications and work product of your mediation will be confidential pursuant to the statute.

How long does Mediation take?

Mediation can vary greatly in length, but on average divorce mediation last between four and ten 2-hour sessions. A case with fewer issues, such as a Modification or Paternity case, will take less time. A case that is more complicated, such as a divorce involving complicated businesses, self-employment income, or custody disputes, can often take longer. The length of the mediation will depend on the attitude of the individuals, how complicated their disputes are, and how flexible their schedules are.

Will the Mediator help me prepare court documents?

Once an agreement is reached, a mediator who is also an attorney can help the individuals prepare court documents, such as the Separation Agreement. If you need assistance preparing your Financial Statement, or you need advice as to whether an Agreement is in your best interest then you should consult with an individual attorney. Although, a Mediator can help you prepare an Agreement, they cannot provide you with individual legal advice.

Does the Mediator go to Court with us?

Because the mediator does not represent either party, the mediator will not attend court with you, even after an agreement is reached.

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