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Massachusetts divorce mediator, Justin L. Kelsey of Skylark Law & Mediation, recently wrote about a phenomenon that I have frequently observed in my family law practice. Namely, Justin observes how divorce litigators have a habit of only noticing the divorce mediations that fail. We often fail to pay attention to the many divorce mediations that avoid both the courtroom and litigator’s office. Justin goes onto to explain that good divorce mediators are often victims of their own success:
Unfortunately … litigators don’t see the successful cases from mediators, they only see the cases that failed. This creates a skewed view of mediation. But it’s also problematic if you extrapolate any one failure to all mediation. If the parties failed to reach an agreement in mediation does that mean mediation doesn’t work, or that mediation didn’t work for that couple? If a party changes lawyers do we call that a failure of the whole court system?
As a litigator, I admit to sometimes focusing on failed mediations – rather than those that work – because mediation washouts tend to be the clients who come to my office seeking litigation. The truth is that a well mediated divorce agreement is unlikely to ever find its way into a litigator’s office. That’s the whole point of mediation: staying out of divorce lawyers’ offices.
This aside, Justin is certainly right when he observes, “[t]here are bad and good lawyers, and there are bad and good mediators”. I have found this variation in legal talent to be especially pronounced in divorce mediators, with many attorneys (and even some non-attorneys) holding themselves out as experienced mediators with little or no family law litigation experience. Justin is an example of a mediator who did it right. He spent more than ten years as a litigator in Probate and Family Courts throughout Massachusetts before devoting himself fully to mediation and collaborative law.
The reality is that a good divorce mediation can save the participants tens of thousands of dollars in unspent legal fees. That’s why it makes sense to invest in a top-flight mediator with the talent and reputation to make the mediation work.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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