Massachusetts Divorce Mediation FAQs

Check out Nicole’s blog, “Tips for Finding the Right Divorce Mediator for Your Family”, for a nice overview of this subject.

Finding a divorce mediator that works for both you and your spouse by encouraging fruitful discussion and advancing agreement is a big factor in the outcome of a mediated divorce. Unfortunately, mediators cannot simply be ranked by effectiveness: A divorce mediator who works perfectly for one couple might be inadequate for another. This makes finding a “good” divorce mediator difficult.

At South Shore Divorce Mediation, we offer our mediation clients options. We have separate offices in Hingham and Cape Cod (E. Sandwich), offering clients geographic options. Plus, our mediators have different skills, personalities and abilities that we try to describe on their mediator profile pages.

We are always happy to answer questions from potential mediation clients who are trying to determine which mediator will be the best fit for their divorce.  Call our main office at (781) 253-2049 or email us at info@madivorcemediators.com and we will do our best to help!

Divorce mediation can still work, even when parties have a contentious relationship.

Mediating a contentious divorce is certainly more difficult compared to a relationship that is amicable. However, that does not mean that mediation is impossible, or even that mediation is not still the best option. When parties get along and agree on most subject, divorce is easy. A divorce with challenging issues – including the relationship between the spouses – still needs to be completed, and mediation can still work, despite a difficult relationship.

Many divorces happen precisely because the relationship between spouses has become too contentious to continue. Mediation can still be an excellent way to resolve the disputes because it provides both spouses an opportunity to discuss their respective futures in a setting that will deescalate the tension. The mediators at South Shore Divorce Mediation are generally quite skilled at keeping sessions calm and productive, and minimizing whatever tension there might be between spouses. Of course, none of this is fool-proof. If spouses cannot tolerate being in each other’s presence, or if one spouse is so scared or intimidated by the other spouse that he or she is unable to meaningfully participate in mediation, then the process breaks down.

Mediators often encounter imposing or domineering spouses who try to pressure the opposing spouses in a variety of ways. While there are situations where this becomes too overbearing for the mediation process to be productive, mediators have a variety of tools for circumventing the cycle of conflict  and bringing both parties to the table to discuss their future in a fruitful, thoughtful, and civil manner that is beneficial to both sides.

While every situation is different, mediated divorces are generally better for the children involved than if the divorce goes through litigation.

Mediated divorces provide an opportunity for the parents of a child to come up with parenting plans that are uniquely suited for the child’s well-being and for the ability and resources of each parent. These are often far better suited for the child’s needs than those that are determined by a divorce court judge, who only sees the dynamics of your family from an outsider’s perspective, and only for a short period of time.

Perhaps more importantly, though, mediated divorces avoid much of the adversarial nature that is the hallmark of a litigated divorce. The kind of conflict that often comes during litigation frequently leads to stress and tension in the personal lives of the spouses who are separating, and this has a negative impact on the children in the family. Even worse, many litigated divorces involve children being called on to provide testimony through court-appointed investigators such as Guardian ad Litems. Even if it does not occur in open court, a child’s testimony can have a great deal of influence on issues surrounding child custody and child support and children, even young ones, apprehend the seriousness of the situation, which can be incredibly stressful for them.

Yes. Same-sex marriage has been legal in Massachusetts for well over a decade. All of our mediators have handled same-sex divorces in the mediation or litigation context, and while some of the dynamics of same-sex divorces can differ from opposite-sex divorce, these differences are generally minor.  

Where same-sex marriage was legalized in Massachusetts in 2004, our courts have had more exposure to same-sex divorce than most states. Special concerns can arise in same-sex divorces involving children, where many same-sex couples rely on adoption or in vitro fertilization to have children, resulting in legal issues that are not present in natural birth contexts. At the same time, many of the special issues arising out of differences in state and federal law have been resolved or mitigated since the Supreme Court legalized same-sex marriage across the United States. Although some unique challenges remain for divorcing same-sex couples, experienced mediators are well-equipped to address these issues as they arise.

The short answer is yes, there are some cases that are not well-suited for mediation. However, it is important not to jump to conclusions about where mediation is more flexible and adept that many people give it credit for.

There are three main classes of cases that are unsuitable for mediation: (1.) Extremely contentious cases in which a history of abuse or imbalanced power dynamics prevents one spouse from effectively advocating for him or herself, even with the aid of a mediator. (2.) Complex financial cases in which one spouse lacks the training, knowledge or acumen to evaluate the financial issues in the case, and (3.) cases in which one or both spouses fail to show a good-faith commitment to the mediation process by providing accurate information or records, or by failing to negotiate honestly.

If you are worried that your divorce will be too complex for mediation, bear in mind that outside experts like accountants, real estate appraisers, and even investigators can be brought into a divorce mediation to help, just as such outside experts can play a role in divorce litigation. These professionals can provide the special knowledge it takes to adequately resolve your divorce in mediation. Moreover, many spouses address complex financial issues in a mediation by hiring a mediation-friendly attorney as a Mediation Coach. Such attorneys are trained to analyze complex financial issues in a divorce and can provide invaluable aid to spouses who are trying to understand a family’s finances.

If you are worried that you and your spouse are too adversarial for mediation to work, you might have more cause for concern. Divorce mediation is based on mutual respect, trust, and communication. If you do not think that your spouse will play fair or if you do not trust your spouse, then mediation might not be your best option. The same goes for if your spouse has been abusive in the past and you are concerned for your safety. If you are worried that your spouse has special knowledge – for example, he or she is a divorce attorney – or too much of the bargaining power in your relationship for mediation to work, though, it is important to remember that some of these issues can be addressed through the use of a Mediation Coach, and that mediators are trained to see these problems and account for them in ways that does not let one spouse overpower the other.

Divorce agreements that are made through the mediation process are just as enforceable as agreements that are the product of litigation, or judgments entered by a judge after trial.

Throughout the mediation process, the mediator’s goal is to craft a well-written divorce agreement that is free of ambiguity or uncertainty. In this regard, a mediated Separation Agreement is no different from an agreement prepared by attorneys through litigation. The only difference between a mediated Separation Agreement, and one prepared by attorneys during litigation, is the methodology employed in reaching resolution. In either instance, the agreement is incorporated in the Judgment of a Divorce and becomes enforceable as a court order thereafter.

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 date be schedule at a time convenient to both spouses. This way, neither spouse feels left out of the process early in the mediation.

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 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 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 meeting. 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 meeting. 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.

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.