Massachusetts Divorce Conciliation FAQs

Most (although not all) conciliation clients come to the process after hitting and impasse in litigation. With the Covid crisis drastically reducing access to courts, many parties and their attorneys are now seeking conciliation where judges are simply not available. Conciliation often represents a middle ground between fully committing to mediation vs. continuing with litigation. Because most conciliations include the participation of attorneys, the conciliator is often suggested and/or selected by the attorneys.

First and foremost, a conciliator is not subject to the scheduling and time constraints of a trial court judge. Conciliations can generally be scheduled quickly, based on flexible schedule – in contrast to the months (or years) of delay parties experience in the trial court.

In some ways, family law conciliation is similar to how some judges conduct pretrial conferences in the Probate & Family Court. In pretrial conferences, attorneys for the parties submit memoranda to the Court summarizing their client’s arguments and positions, and the judge often provides feedback during the hearing regarding how he or she might rule at trial. However, because a judge must maintain impartiality and reserve his or her final decision for trial, after all evidence is submitted, most judges take a cautious approach to offering feedback at a pretrial conference. The judge often notes that he or she has not made up his or her mind about any issue, and any feedback he or she offers is only preliminary. Finally, the judge at a pretrial conference generally only plays a limited role in settlement talks, where settlement negotiations are confidential and generally conducted outside of the presence of the judge.

Unlike a judge or arbitrator, a conciliator is not the final decision maker in the party’s case. This means that the conciliator does not need to reserve his or her opinions until all of the evidence is presented at a final trial on the merits. The conciliator is encouraged to offer his or her opinions based on each party’s presentation of the evidence, then participate directly in the settlement negotiation process.  This can help facilitate settlement.