Through Lynch & Owens, I offer potential divorce clients a free initial consultation. I do the same through South Shore Divorce Mediation. During these consults, I am frequently asked “what’s the difference between mediation and divorce?” The answer is always the same – mediation and divorce are not the same thing at all: divorce is a legal outcome – an end, if you will – and mediation is a means to that end. Mediation is one way to help parties reach the status or goal that we call divorce.
What potential clients do not realize is that what they’re really asking is: what’s the difference between mediating and litigating in a divorce?
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There are different ways to get a divorce, and mediation is one means to that end. As a mediator at South Shore Divorce Mediation, I help spouses who no longer want to be married reach resolution on the major issues in their divorce, such as parenting time, child support, alimony and/or the division of marital assets.
s a mediator, I am trained at assisting the parties in reaching agreement on major divorce-related issues and memorializing it for submission to the Probate & Family Court. But a mediator is a neutral professional who cannot advocate for either spouse. Unlike when I am acting as an attorney, I cannot defend or press for one party’s side as a mediator.
Litigation, which is another avenue to divorce, means the spouses hire attorneys to navigate the divorce process by taking steps including filing Motions for Temporary Orders (to give the parties direction while the litigation process ensues); performing discovery (to ensure that both parties are fully aware of the financial situation of the marriage); and proposing agreements (which eventually become the final contract in the divorce). In litigation, the two sides negotiate, and, in situations where the parties have failed to reach an agreement on all issues, the lawyers will advocate for their respective clients by arguing points of law and the merits of the case to a judge, who will then make the final decisions for the parties.
Many people describe this as “letting the lawyers battle it out” which sometimes leads to the parties reaching a full separation agreement, a partial agreement with only one or two issues presented to the Judge for resolution. If no resolution can be reached, the case proceeds to trial, where the Judge will make the decisions for the parties’ futures. As a practical aside, it is always better to walk into a courtroom knowing what you will walk out with.
The two big differences between mediation and litigation are the cost and advocacy. In a typical mediation, costs are generally lower, as the parties do a majority of the decision making and advise the mediator of their decisions which are then memorialized into the separation agreement. The mediator charges the parties hourly and the parties usually share the costs.
In a litigated divorce, both parties rely on the advocacy of their attorneys, at a cost borne by each spouse. The attorneys negotiate between themselves, relating the communications to the client, generally at a greater cost to the parties compared to mediation. If the case proceeds to trial, the cost could double or triple with the preparation that is required to bring a case before the Judge.
Not all divorces can be mediated, however. Mediation works best when the parties can work cooperatively toward a shared goal. If the spouses are diametrically opposed, the only option may be litigation and “letting the lawyers battle it out.”
About the Author: Carmela M. Miraglia is a Massachusetts family law attorney for Lynch & Owens, with offices in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.
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