We have been thinking a lot lately about what some see as mutually inconsistent behaviors: the filing and service of a divorce complaint during mediation. There are many reasons why a person may feel a need to file while mediating because of a host of rules and statutes that filing and service trigger, such as asset restraining orders, mandatory document exchanges, the running of certain waiting periods and quite recently, the fixing of “length of marriage” for application of Massachusetts’ new alimony laws.
Many mediation clients may feel that such a filing and service is hostile to the notions of good faith meditation, which objectively stated, is not always the case. Yet, meditation clients enter the process because they need to deal with each other; and that includes the attitudes that each of them may hold on this very subject. Each person needs to make cost benefit decisions throughout, and this is just one of many.
The role that the mediator plays in either introducing this topic to the parties or in addressing it when raised by one of them (or by counsel) bears more critical thinking. We believe that mediators should not handicap their clients with a doctrinaire view that assigns ill motives to the person who is considering, or should be considering, a filing. Rather, neutral professionals have an obligation to encourage transparency, solid information and informed decisions, including this one.
This subject is a complex and layered one and we are working on a longer and far more detailed treatment of this important aspect of mediation, cutting across the spectrum of family law, and we will post it here after its publication.