WHY I BECAME A MEDIATOR
I have been practicing law since June 10, 1975, and for many of my years, I have been a trial lawyer in the District Courts, Superior Courts, Land Court, Federal District Court, Massachusetts Court of Appeals, Supreme Judicial Court and, most of all, the Probate and Family Court.
I continue to practice law as a litigator almost exclusively in the probate courts dealing with divorce, post-divorce actions, modifications, contempt, equity actions, enforcement actions, custody, paternity, and removal of children from the Commonwealth of Massachusetts. Also in the probate court I litigate contested wills, contested estates, contested guardianships and conservatorship.
Over the past several years I have seen many frustrated people who bring in agreements that they attempted to prepare themselves, acting pro-se, or unfortunately from inexperienced professionals that may have been enticing due to a low fee. This has been particularly frustrating to me because in the long run, these individuals end up spending many years of frustration with inadequate agreements and many times spend quite a bit more money to modify all of which is lacking in their current agreement.
Most recently, I have listened to some of my clients who have made inquiry about mediation, asking: "What is it? Should my case be mediated? Do you do mediations?" As a result of years of looking at agreements that are not quite up to par, and in order to better provide my clients the opportunity to try to resolve their cases removed from the stress of the contested forum of the courtroom, in 2016, I completed an intensive training in Boston to become a mediator. As a mediator I can offer my clients confidentiality. A mediator can provide his or her clients the assurance that they will not to be compelled to testify in court or deposition about the content of the mediation. In short, all information provided as part of the mediation process is protected against disclosure.
As always, I am prepared to represent you in litigation which I have done for over thirty years and will continue my trial practice. But due to the requests of my clients, I went back to school and can offer you mediation if the circumstances permit. Please call me, and let's talk.
WHAT IS MEDIATION AND WHY MEDIATE?
1) I completed an intensive training in Boston to become a mediator. Via my membership to the Massachusetts Counsel on Family Mediation, I offer the participants the security of confidentiality.
2) In my over thirty years of trial experience, I have witnessed the frustration of my clients when they realize there is a lack of control: that is, a judge or jury ultimately makes the decision after all of the testimony/physical evidence has been introduced.
3) Another frustration I have witnessed is the down time that occurs in litigation, while you sit until your case is called in a crowded first session, whether for a motion to be heard or a trial to be called. You may have a notice to appear in court by 8:30 a.m., and not have your case reached until 11:30 a.m. or longer.
THE BENEFITS OF MEDIATION
1) You can schedule your meetings with the mediator, when it is convenient for the two of you and the mediator. The time interval, whether it is an hour or several hours, will be exclusively for the mediator to work only with the two of you, and your case.
2) As a mediator, I encourage the parties to discuss their problems that they are having that prevent an overall settlement. I encourage the parties to propose their own solutions that would solve the problems. I encourage a procedure entitled "caucusing" during which I meet with each of the parties separately in order for me to understand in privacy what concerns each party has. Caucusing is only conducted if I have the permission of both parties, and I will not disclose what I have learned unless I am authorized by that to do so.
3) Mediation can be less expensive than litigation. Mediation leads to a full discussion of any particular issue, both the dilemma and the proposed solution. I encourage both parties to employ his/her own attorneys to provide independent legal advice. While I am an attorney, when I mediate a problem, I am a facilitator, steering the discussion towards a solution without offering legal advice, but suggesting possible solutions and options. Providing legal advice is the job of the individual lawyers. I am barred by the Canon of Professional Ethics from representing parties who have adverse interests.
The Mediation Fees are shared by the parties to the mediation. They may be sharing the expense equally or not depending upon what the parties agree. For example, if one party makes significantly more money, the parties may agree to a disparate division of payment of the mediator's compensation.
4) Mediation can lead to the preparation of a comprehensive settlement agreement. After the parties have come to a satisfactory endpoint, I can prepare a memorandum that contains the essence to which the parties have agreed, to be written in the form of a comprehensive binding agreement by one of the parties' attorneys. That same agreement can be presented to the Court at a hearing during which the judge makes inquiry about whether or not the agreement was signed by each party free from coercion, and if each party believes that the agreement is fair and reasonable considering all of the circumstances.
5) The Solution to your case as derived in Mediation can be creative. Typically a contested case heard by a judge will not have a creative outcome. Mediation can lead to solutions that a probate court judge must approve and be enforceable, but typically cannot be formulated by a judge hearing that case following trial.
WHAT TYPES OF CASES CAN BE SUCCESSFULLY MEDIATED?
Most cases can be successfully mediated. These are the situations in which both parties want a resolution, and their respective egos allow them to negotiate in good faith leading to a fair resolution under the circumstances. A trained mediator can provide to the parties while in session with him/her suggestions about how to solve their problems about a myriad of issues, including, but not limited to, divorce, custody, parenting plans, child support, spousal support, division of property, post-divorce modifications, paternity, conservatorships, guardianships, division of estates.
WHEN MEDIATION MAY NOT BE HELPFUL
From my experience as a litigator, I know that there are certain types of cases that usually do not settle despite attempts at mediation, among them, the most difficult being custody of children.
Although child support is a formula and the intention is to create uniformity, all cases are unique and require looking at. I would be happy to meet with you to discuss your unique situation.
1) While not impossible for parties to resolve their differences in custody cases, these cases involving the parties' children are often "gut wrenchingly" emotional which do not lend themselves to helpful guidance and assistance by a trained mediator.
2) Apart from that type of case, there are other cases that are not usually successfully mediated. These types involve marriages in which one of the parties, or perhaps both, are not forthcoming about their closely held businesses, their incomes, their assets, and either or neither party is forthcoming about their financial situations.
3) Another type of case which historically has not had a high degree of success for settlement via mediation involves parties who have been physically and/or emotionally abusive and overbearing towards the other party. Notwithstanding the parties' living separate and apart, the wounds of abuse inflicted upon one of the parties still pervades and influences the afflicted party who fears even the safe environment of the mediator's office where there is no judge or court officers to assert.
I am very excited about this avenue available for me to help my clients. As I have stated, some cases cannot be mediated due to the parties' history, due to the subject matter, due to the extraordinary contested nature of the case, and/or due to the lack of good faith of one or both of the parties.