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Massachusetts Divorce Mediation FAQs

It depends on the type of case. For a divorce, you will have to appear in court once, so the judge can review your mediated agreement to ensure that it is fair and reasonable. When an agreement and all the requisite paperwork is submitted as an uncontested Joint Petition for Divorce, the court will schedule a hearing a date for your agreement to be reviewed by the judge. While no-one enjoys appearing in court (except lawyers), generally if there an agreement, your “case” will be called quickly and your day in court will be brief.

For other instruments, such as mediated agreements for modification, the courts have a process for approving an agreement without the need for either person to appear in court! As long as the requisite paperwork is filed, the judge can decide to administratively allow a modification agreement without anyone appearing in court.

Both spouses need to be ready and willing to mediate, but it is not absolutely necessary that you each initiate mediation together. Our office tries to meet with a couple together to ensure you are both engaged in the process, and to avoid any perception favoritism at the early stages of a mediation. Our office often hears from one spouse, initially, and will request that a consultation be set up at a time convenient to both spouses. This way, neither spouse feels left out of the process early in the mediation.

You can start the divorce mediation process right away, without any court filing. You may also start even if you or your spouse have filed papers with the court.

We work with people who are seeking to avoid the trying court process by filing an uncontested divorce or agreed upon stipulation. We also work with people who have filed, but are now exploring other options. Indeed, sometimes mediation is recommended to people who have filed for divorce, or are in the middle of a case! The mediation process is flexible to accommodate couples who want to hit “pause” on their divorce litigation while searching for another solution. It is not unusual for spouses who have hit an impasse when negotiating a divorce agreement through lawyers to try mediation to break the deadlock.

For people who have not filed, there is no need to do so. The Massachusetts Probate Courts have a process to enables couples who have reached an agreement to submit their agreement and paperwork in a single court filing.

For the initial mediation consultation, spouses are encouraged to bring whatever documents each think may be relevant. However, the main purpose of the initial consult is to review the process, gather information, and begin establishing basic goals, such as a selecting a mediation schedule moving forward.  After that, what you bring is really determined by the issues that need to be discussed.

For divorces or modifications that deal with financial issues, spouses will likely need to begin gathering financial information. For divorce or custody issues, documents relating to the children may be relevant. Ultimately, the necessary documents are determined by a couple’s individual issues and the resolution that is ultimately being sought.  Often times, litigants in a court case are required to provide mountains of information that may or may not be relevant, due to discovery requirements or subpoenas.  In mediation, the goal is to focus on your specific issues, gathering only the records that directly affect your solutions.

Mediation can begin as soon as both spouses are ready. Our office offers free thirty-minute consultation which are scheduled at a time when both people can meet. The consult allows both spouses to get an idea of how mediation will work and get a briefing of the process. After the consult, the first session can be scheduled as soon as possible and/or convenient for the spouses. Maybe you and your spouse decide you each need two weeks to process and gather information – maybe you decide you both want to meet and discuss the issues immediately, building on the momentum of the consultation.

The mediator will offer her thoughts regarding a successful schedule, but what it really comes down to what is best for you and your spouse. We offer flexible meeting times, and if necessary, can meet outside the office.

Either spouse can initiate a divorce mediation by calling our office at (781) 741-5000. Mediation itself can begin as soon as both spouses are ready. Since there are no court filings, the mediator and spouses are not working on the court’s timeline. This allows you each to decide when to begin – and how. Our mediator meet with a couple first and discusses some of the basic information that will be needed.  Some people decide they want to gather information to present to the mediator before the first meeting, while others prefer to meet with the mediator first to establish a preliminary list of documents for each spouse to gather.

Part of the beauty of mediation is the freedom to work on your own timeline.  We have had spouses come in who have a reached a basic agreement, but need the details worked out and assistance with the drafting process; we also have met with people who do not get along, and have not spoken about the divorce, but know they need to reach an agreement somehow.  If both people feel ready to begin, then we begin.

Absolutely. Like most divorce mediators, we suggest that spouses review their final mediated divorce agreement with an experienced family law attorney who represents only that spouse’s interests. Moreover, for divorces that involve complex financial issues or other complicated factors, it may be helpful for spouses to secure private attorneys as mediation consultants or mediation coaches. An attorney acting as a mediation coach generally does not appear at mediation sessions, or directly contact the mediator, but instead works in the background, assisting the spouse he or she is coaching to prepare for the mediation and understand the legal issues involved. Although a mediation coach represents an additional expense, this form of representation is often considerably less costly than retaining an attorney for divorce litigation.

In general, it is helpful for mediating spouses to work with attorneys who are considered “mediation friendly”. Being “mediation friendly” does not necessarily mean that the attorney is a mediator him or herself. It simply means that the attorney should have an understanding of the mediation process, and tailor his or her services to encourage – rather than disrupt – the mediation process.

A divorce attorney who thinks only in terms of litigation can be unhelpful when operating from the sidelines of a mediation for a variety of reasons, ranging from a desire to micromanage the process to self-serving concerns about legal fees. If one or both spouses indicates that he or she would like the support of a mediation-friendly attorney, our mediators are always happy to suggest the names of mediation-friendly attorneys for the spouse to contact. In the end, the decision of who to hire as a mediation coach or consulting attorney during a mediation – or whether to hire anyone at all – rests solely with each individual spouse.

This is a bit of a trick question. In most instances, either spouse can identify a mediator, call or email the mediator’s office, and schedule an initial consultation. However, many mediators are careful to avoid speaking with one spouse without the other present, particularly at the earliest stages of a mediation, to avoid any perception of favoritism by either spouse.

At South Shore Divorce Mediation, our front desk accepts calls and emails from either spouse, but we generally ask that both spouses participate in the initial contact with the mediator, whether that is by phone (via a conference call with both spouses) or an in-person consultation. It is important for a mediator to maintain not only impartiality, but the appearance of impartiality. If one spouse believes the mediator has a special relationship with the other spouse, this can undermine the trust that is crucial to the mediation process. For this reason, we try to involve both spouses from the earliest stages of a mediation.

It is important to note that once a mediation is underway, spouses will sometimes state a preference for meeting individually with a mediator, outside of the presence of the other spouse. This is often a useful technique, but private meetings between one spouse and the mediator should generally only occur with the informed consent of each spouse.

In Massachusetts, the confidentiality of the divorce mediation process is protected by law. This can make a huge difference in your divorce because some very intimate details about your marriage are bound to come up in the process. If this happens in a divorce litigation, those details will often be included in a court filing, which is a public record and therefore accessible by members of the public. 

In a divorce mediation with a qualified mediator, on the other hand, the confidentiality of any information that gets exchanged during mediation is protected by Ch. 233, s. 23C, so long as both spouses sign a participation agreement before the mediation begins. Importantly, this confidentiality applies even if the mediation process proves to be unsuccessful. This prevents any of the documents or the disclosures made during mediation from getting out into the public eye, protecting your privacy and allowing you to fully participate in the mediation without worrying about divulging something you do not want your neighbors to know about.

In general, a statutory mediator cannot be subpoenaed to testify in court, nor can any of her work product – including notes, documents or recollections of what either party may have said during the course of the mediation – admissible.

Mediation is one of the ways that you can resolve a divorce. The hallmarks of divorce mediation are the non-adversarial format and the fact that it happens almost entirely outside of the courtroom. Mediation is also completely voluntary and can only be initiated by the agreement of both spouses.

As a dispute resolution process, mediation focuses on communication and mutual agreement. The spouses meet with a mediator who, over the course of several sessions, identifies points of agreement and conflict, and then helps the spouses resolve their conflicts in a way that is mutually beneficial. The cooperation involved in a mediated divorce saves both spouses a considerable amount of stress and money, and can also keep everything private and make the process go quickly.

The cost depends on the time involved in the mediation. Generally speaking, between two identical divorces, the divorce that is mediated will cost less than the divorce that is litigated. There are several reasons for this. First, instead of both parties paying for separate attorneys, the parties instead share the cost of a single mediator. In addition, the litigation process requires a great deal of formal obligations for each attorney: They must attend mandatory court hearings, exchange mandatory discovery, and take trial preparation steps from early in the case to protect and prepare each client for a potential trial. Mediation, on the other hand, is a voluntary process that spouses engage in without the pressure of court-imposed deadlines and multiple litigation-driven steps, such as extensive discovery, deposition and multiple court hearings.

As with retaining an attorney, mediators charge an hourly fee. Our office offers a free 60-minute consultation so you may present the mediator with an overview of your situation and obtain feedback from the mediator about how the mediation process would work for you and your spouse. While it is difficult to predict the ultimate cost, the mediator will review the many ways in which spouses can control mediation costs through their own actions, along with the events and issues that tend to increase the cost of mediation, including extensive document review and scheduling multiple mediation sessions to address multiple narrow issues.

It is not necessary for spouses to get along for divorce mediation to be successful. The first and most important ingredient in any divorce mediation is a shared desire by both spouses to avoid the litigation process. From this single shared goal flows a series of shared interests and desires that are often obscured by high emotions, anger or anxiety. Part of the mediator’s job is to aid spouses in recognizing their shared interest and prioritizing these interests over secondary feelings such as anger, betrayal or sadness.

To be clear, a mediation cannot ultimately be successful if the feelings of hostility and anger between spouses are so powerful that the negative emotions overwhelm a couple’s ability to reach common ground and mutual understanding. However, a significant part of the mediation process centers on processing negative emotions by helping each spouse prioritize his or her emotions in the larger context of a divorce. So long as there is an agreement to mediate, a successful mediation is possible.

The duration of a specific mediation is largely a function of the motivation level of the spouses. If spouses are eager to complete their divorce quickly, the mediator is generally able to accelerate the process to a few months (or even weeks). Motivation is not the only factor, however. The need to obtain and review extensive financial records or address complex financial issues often requires the spouses and mediator alike to slow down to ensure that complex issues receive sufficient attention and emphasis. If one parent has recently left the home, spouses will often slow the mediation down before finalizing an agreement to allow the children to adjust and to try out new parenting schedules. Emotional barriers, including anger or a spouse’s desire to reconcile rather than proceed with a divorce, may need to be addressed before spouses can proceed to substantive issues such as parenting time, child support or alimony, or the division of marital assets. Lastly, if each spouse reviews a mediated agreement with an outside attorney, additional time may be needed to allow for the attorney’s schedule and the resolution of any final details.

Each mediation is unique, so there isn’t a standard answer. The timing depends on the number of issues, their complexities, and whether there is an agreement on any of the issues. Couples come to mediation at different stages in the divorce process, and the duration of a particular mediation will often depend on how eager the spouses are to complete their divorce and the degree to which they enter mediation with a clear idea of the main issues they agree on.

Many books have been written on divorce mediation, making it impossible to explain the entire mediation process in a short Q&A. However, we can say several things with confidence:

  1. The parties will schedule a free consultation with one of our mediators. In general, our mediators will avoid speaking on the phone with each individual spouse – a conference call with both spouses is less problematic, and ensures that each spouse feels he or she is working with a neutral, impartial mediator.
  2. The mediator will meet with both spouses, review the facts of your marriage and family, and identify what goals each spouse has for the divorce and/or mediation process.
  3. The mediator will seek to identify areas of broad agreement that the spouses already hold, while carefully exploring and identifying other areas that the spouses may not have discussed or disagree about at the time of the consultation.
  4. The mediator will discuss the concrete steps that are likely to occur within the couple’s mediation, and the parties will determine whether to retain South Shore Divorce Mediation to mediate their divorce.
  5. The mediator and spouses will set out a proposed schedule, goals, and a methodology for finalizing areas of agreement and for working through areas of disagreement.
  6. Following mediation sessions, the mediator will prepare a written summary of each party’s respective position, including issues that are resolved or remain in dispute, and set the agenda for the tasks each spouse (and the mediator) must complete before the next session, as well as the agenda for the next session.
  7. As the mediation progresses, the focus will tighten on the specific issues that require resolution. These can include custody, division of property and assets, child support, and any other issues that arise.
  8. As consensus is reached, the mediator will aid in developing a formal, written separation agreement that embodies each area of agreement the parties share.
  9. After producing a final mediated divorce agreement, most spouses will choose to present the agreement to an independent attorney (who may be suggested by the mediator) prior to finalizing the agreement.
  10. After reaching a final agreement, the mediator will generally assist in the production of a Joint Petition for Divorce and associated documents for the Court.
  11. After receiving a date from the Court, the parties will appear before a judge in a brief, uncontested hearing. There, the judge will review the agreement to determine that it is “fair and reasonable.” If it is, the judge will approve the spouses’ divorce.

The specific sequence above can vary from mediation to mediation, depending on the issues and concerns presented. However, most mediations follow this basic framework towards resolution.

A divorce mediator is a trained, neutral third party who guides divorcing spouses through the negotiation of a final separation agreement that can be entered by a Massachusetts Probate and Family Court judge without the need for litigation. Although many divorce mediators are attorneys, there is not a requirement under Massachusetts law that a mediator meet any special educational requirements beyond those outlined in Ch. 233, s. 23C. Many spouses seek out experienced divorce attorneys to serve as mediators because divorce attorneys are intimately familiar with the issues raised in a divorce, as well as the technical specifications of a separation agreement. It is important to note, however, that a divorce mediator is not offering legal advice, even if he or she is a trained attorney.

Divorce mediation is a non-adversarial and voluntary procedure for conflict resolution. It is not the mediator’s job to instruct the parties to agree on certain issues. Instead, the mediator’s role is to facilitate negotiation and agreement by asking the right questions, identifying and finalizing areas of agreement, and assisting in the preparation of a final separation agreement which effectively contains the mutual agreements of the parties.