Legal Question in Family Law in Massachusetts

Re: Family Probate Courts 2

MMediators are not charged to protect anyone's rights or interests. Few are are attorneys and as such, are not allowed to represent the best interests of either party (or the children)... their goal is to get parties to agree to terms... ANY TERMS... in order to get the case closed.

Mediators work very well in situations where both parties have equal financial resources, equal education, and equal abilities.

If one party in the divorce is more forceful and the other party more shy, or one party is the higher income earner and the other is unable to make ends meet, then there is a definite imbalance and the more forceful party will alwys do better with a mediator because they will leverage that and take advantage of the other side... the mediator cannot advocate for anyone's best interests, and cannot step in to protect anyone's rights that are otherwise guaranteed by the courts.

Re: Family Probate Courts 2

I do not agree that mediators will always favor the more forceful or more well-heeled party, nor am I at all against mediation where both parties reasonably seek it. I am firmly against non-attorney mediators, however, and agree with Mr. Weiker's points on that. I would go farther and say that an attorney who does not litigate family law cases is also a poor mediator, because the "this is what is likely to happen" prediction should be based in real experience, not happy-minded theory.

I have mediated a number of divorces as an attorney, consistent with the ethical mandate that I cannot and will not assist in "scrivening" of a mediated agreement which I believe to be contrary to the best interests of the children, or procured through financial fraud or over-reaching. Most of the cases have resulted in an agreement being presented to the courts. On several occasions, I had to say, "There is no way I would assist in drafting such an agreement" in order to get attention. Several times, I have determined that the mediation was itself irretrievably broken, and the parties have had to seek litigation.

Mediation is not a panacea. It works primarily when the parties are ready to deal, or when they -must- deal. As such, it often works better in the court process, where it is employed day-in and day-out. That being said, this questioner's twice-repeated attack on the system is not based in reality.

I have known of mediations handled by other parties in which I believed one party to be acting in bad faith. In those cases, mediation has been used to prolong the pre-filing period, sap resources, or conduct factual investigation before refusing to go to agreement.

The reason most people do not mediate outside court is that they choose not to. If they were forced to go to such mediation before court, one or both would generally stymie the process, for real or perceived advantage or (at least as likely) out of unresolved anger. That is half of the purpose for having a court firmly dedicated to moving these matters along and bringing the "average" case to a relatively efficient resolution.

The other half of the purpose is the case where there -are- real issues -- parental fitness, abuse (verbal/mental, physical, financial, and all combinations thereof) and serious financial imbalance. It is bad enough where one party is unreasonable just out of hurt feelings, and must be pushed and pulled to the table. It is far worse when these kinds of imbalances and abuses happen.

If you want divorce to be nice in 99% of cases, you need to entirely change human nature. As that isn't going to happen any time soon, the system we have cobbled together will have to do.