By Howard I. Goldstein, Esquire
Goldstein, Egloff, Ramos & Wood, LLP
I am often asked what the best time is to get into mediation during the course of a divorce. Of course, as a mediator I have a vested interest in the answer to this question. But frankly, it is never too early to start mediation. In my career as a litigator I often ran into opposing counsel who just insisted that mediation could not be attempted until all pretrial motions, and discovery had been resolved. That is simply not my experience. Here are some reasons why early resort to mediation can be helpful.
- Temporary Orders – Mediation can be used instead of filing a Motion for temporary orders. If the parties are unable to agree on temporary arrangements, the courts stand ready to hear temporary orders. The problem is that in a typical Massachusetts Courtroom you will wait all day for a few minutes at best with the judge hearing the Motion and waiting weeks and longer for a decision is not uncommon. The parties will have spent money with their lawyers preparing the motions, preparing their financial statements, and assorted memos, and will then pay for transportation time to and from the courthouse, and waiting time. There is nothing more infuriating to clients than to cool their heels in a courtroom waiting for the chance to go before the judge. Often the temporary orders, decided on scant information and no oral testimony, will determine the course of the case. If the parties can agree on temporary orders, it is generally without prejudice because it is by agreement, and sets the stage for more productive global settlement talks. There is no one wounded by an adverse decision. When a judge decides something there is always a loser and a winner.
- Discovery — With a good mediator the necessary exchanges of information can be resolved without extensive legal expense and court time. The mediator can guide the parties to request only the minimum necessary to achieve a settlement. It is rare that depositions are conducted while a case is in mediation, and for most cases that are in mediation depositions are not necessary. They are absolutely necessary if a matter is going to trial, but for most cases in mediation, the depositions can be put off and do not take place unless the mediation fails to produce a settlement.
- Valuation – If there are valuation issues, the mediator can select a neutral appraiser and the parties will avoid the necessity of hiring “dueling” experts. If the mediator selects the appraiser, both parties can be assured that there is no funny business going on. Appraisal is an art not a science. Even if there is no funny business, two appraisers will likely not come up with the same valuation.
- Parenting – mediators can help clients come up with a parenting plan that is out of the box and suited to the parties’ actual lives and needs. At a hearing on temporary orders it is most likely that the parties will end up with a boilerplate parenting plan that reflects the Judge’s philosophy and not that of the parents. Just as with financial temporary orders, there is just not enough time for a judge to learn enough about the family to customize a solution.
- Drafting the agreement – Once the parties have shaken hands on an agreement, having the mediator create a first draft is more likely to facilitate a final deal than if the parties go off to their corners and have their separate lawyers argue over competing drafts. There will be plenty of time to fine tune the mediator’s draft, but usually having the first draft come from the mediator will result in much less quibbling about the text of the document.
- Post Divorce – If there is a house to be sold, or other post divorce transfers to take place mediators can often facilitate these activities and help settle, for example, disputes about the sales price and timing of property to be sold.
- Partial settlements — If there is a lot of information that needs to be obtained before a final settlement, often a mediator can facilitate partial settlements that will save the clients considerable aggravation and money, even if the entire case can’t be settled. There is rarely a case where mediation isn’t helpful even if all issues are not settled. In fact, it is more common than not, in my experience that cases may not settle at mediation, but enough progress is made that the case eventually settles days or weeks later.
- Modifications — many of the clients working with me in mediation, return years later for help with changes of circumstances. Because there is already the relationship the clients return rather than going off to their own lawyers, and litigating a modification.