What should you do if your spouse or former spouse or partner will not use mediation or collaborative process?

There are a variety of process options available and different types of legal representation for your MA divorce or family law matter.  Although television and movies focus on court and litigation, the vast majority of Massachusetts family law cases resolve without a trial.  In Massachusetts family law cases, whether divorce, child support, parenting, or custody disputes, there tend to be more hearings than formal trials.

When you find yourself facing a divorce or other family law issue, you are doing yourself a disservice if you do not seriously consider all of your process options, including less-advarsarial approaches.

There is a difference between having a court-based case and assuming you will need to proceed to a full trial in order to reach a resolution.  Sometimes having your case filed at the court actually helps promote settlement and provides some structure to move things along due to the court’s scheduling procedures.  If a person will not consider mediation or a collaborative approach, then a court-based approach is necessary.

Once a divorce or other case, such as a Complaint for Modification, is filed, then various tools become available through different discovery options.  Discovery allows both sides to request and obtain information from the other side when someone will not otherwise disclose information relevant to the case.  In a mediated or collaborative divorce, information is freely and voluntarily exchanged by the parties, alleviating the sometimes significant expenses involved in formal discovery.  Some lawyers will file discovery requests in an effort to harass the other side, or even to increase billable hours.  This should not happen, but it does occur and most often there is little the other side can do about it.

The MA Probate and Family Court places every case on a scheduling track, thus if one party simply will not engage in dealing with the issues, then filing the case can be necessary to overcome the person that prefers to bury his or her head in the sand and pretends nothing is going on (the Ostrich syndrome).

Even when a court-based approach is necessary, looking for reasonable settlement opportunities is an ongoing analysis.  Sometimes, the cost to continue a court-battle just is not worth the expense in legal fees and increased stress levels.  Performing this cost-benefit analysis is something we help our clients consider as they move through the ups and downs of a court-based divorce or other cases.

When you speak with attorneys that focus on court-based work and litigation, consider if they speak negatively about other options such as mediation.  Consider whether they may be steering you away from mediation because they are not mediators, and do not want to lose the opportunity to earn a large amount of legal fees on your matter.  Another consideration is that an experienced family law practitioner may identify some red flags possibly making mediation a poor choice for your case, such as abusive behavior by a spouse/partner, mental health disorders, or significant substance abuse problems.  The presence of these factors do not automatically rule out other approaches, but you will want to discuss them with a skilled and experienced divorce and family mediator or collaborative law practitioner and make the decision that is best for you and your family.

Contact us to discuss your case and learn more about how we can help.  We will work closely with you to develop a plan and determine the best way to achieve your goals.  When you schedule a consultation and if you are not sure how to proceed, let’s review your options together so you can weigh what is best for you. If your case is contested, we will look for opportunities to reach a negotiated settlement that is fair and workable, so you can move forward with other important aspects of your life sooner than later.

If you have a type of case that we cannot assist with, we will be pleased to refer you to a qualified attorney experienced with cases in that area, whether a personal injury, insurance matter, or business dispute.

Our focus areas include:

Massachusetts Divorce & Family Law

For more information, please call us or simply complete the contact form on our website.