Massachusetts Divorce Mediation FAQs

Not every divorce involves significant tax issues. Moreover, many mediation participants are capable of understanding basic tax issues, such as child tax credits, that can arise in a divorce. More challenging tax issues include the tax deductibility of alimony, transfers from retirement accounts using Qualified Domestic Relations Orders (QDROs), couples owing back taxes, 529 college savings accounts, how long divorcing spouses in Massachusetts can file “joint” tax returns, and tax issues concerning the marital home. It’s important to recognize that even the most tax-aware divorce mediator generally cannot provide specific tax advice to divorce participants. For this reason, it often makes sense for mediation participants to consult with an outside tax expert, either individually or together, before finalizing their divorce agreement. (Similarly, a tax-aware mediation coach can often assist a participant with specific tax issues.)

However, a tax-aware mediator can play and important role in spotting and avoiding tax issues that can arise in the divorce context, as well as drafting divorce agreement provisions that effectuate the tax goals articulated by the participants. For a more complete rundown on tax-aware mediation, check out Kim Keyes’ blog, Tax Reform and Divorce: Is Your Divorce Mediator Tax-Aware?

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!

No. The mediator’s role in a divorce mediation is as a neutral third party who urges spouses to listen to each other’s needs, creatively craft solutions that are mutually beneficial, and compromise in ways that ensure everyone’s future success and well-being. Directly representing either you or your spouse during the mediation would destroy this neutrality. (It might also violate the Massachusetts Rules of Professional Conduct, which impose a duty of loyalty and a duty to avoid conflicts of interest on attorneys.)

The mediator’s inability to legally represent either party extends past the ending of the mediation sessions. Because these sessions are kept confidential in order to facilitate the negotiation process, it would be improper for the mediator – who has inside knowledge of those discussions – to then give you legal advice after the mediation has wrapped up.

In contrast, a mediation coach is an attorney who can assist you during the mediation process by offering coaching as you work with the mediator. Your mediation coach can represent you in divorce litigation if the mediation process breaks down.

During a mediation session, it not unusual for a mediator to split the spouses and meet with each spouse separately, provided each spouse agrees to this arrangement. Speaking separately with each spouse helps the mediator better understand each spouse’s separate concerns, worries, and goals. Spouses often have their guard up in the presence of other spouse, and separate meetings between each spouse and the mediator allows the mediator to aid each spouse in communicating in a manner that facilitates cooperation instead of conflict.

It is important, however, to address the elephant in the room when it comes to individual meetings during the divorce mediation process: The core value of a good mediator is their neutrality. Good mediators do not use individual meetings to favor one spouse over the other or to provide important information to one, but not the other spouse. Because it is precisely this neutrality that makes mediation such a good tool for resolving a divorce, successful mediators take impartiality extremely seriously, and do not put their neutrality into jeopardy.

Because maintaining impartiality is paramount, many mediators will limit their individual meetings with a spouse to scheduled mediation sessions where each spouse is physically present in an adjoining room. While couples sometimes agree that each spouse may meet with the mediator on his or her own, outside of the context of a scheduled session, these arrangements must be handled carefully to ensure that each spouse maintains trust in the process.

Because divorce mediation is conducted outside of the courtroom between you and your spouse, there is often only one single court appearance that needs to be made over the course of the entire divorce – i.e. when the divorce papers need to be filed with the court. If parties each want the mediator to attend the hearing, this can generally be arranged, with certain limitations. For example, spouses must remember that even if their mediator is a divorce attorney, the mediator would not be acting as an attorney for either party (or both) at the hearing, and would not give legal advice. Moreover, most mediators will be very reluctant to appear as a witness before a judge, even in an uncontested hearing, where the work product of a mediation is barred from disclosure in any court proceeding.

In rare occasions, spouses currently going through a divorce mediation may need to make a court appearance for matters related to their divorce. For example, the tension in divorce is so high that it leads one spouse to file a restraining order against the other, or child custody needs prove to be contentious enough that a temporary court order becomes necessary to prevent a situation from escalating. In these instances, Massachusetts law protects mediators from being served with subpoenas or from otherwise being compelled to testify on behalf of one or both spouses.  

You and your spouse, with the help of the mediator. 

Mediation is meant to be a wholly collaborative process that allows you, your spouse, and the mediator each play a role in crafting a divorce agreement that is fair, equitable and legally binding. You and your spouse provide all of the “raw materials” for the divorce agreement. Meanwhile, the mediator guides you into productive conversations that are meant to draw out key facts and flesh out potential roadblocks that could become a source of conflict in the years ahead. The facts teased out by the mediator fuel more solutions for you and your spouse as all of the potential conflicts that are foreseeable for your post-divorce life are identified and discussed. Finally, the mediator helps you and your spouse articulates you have made within the context of a Separation Agreement that can withstand scrutiny.

Where decisions have been made by you and your spouse in an atmosphere that promotes creative conflict resolution and cooperation, it is important that the divorce agreement be fair and reasonable towards you and your spouse. In general, Separation Agreements that are the product of cooperative negotiations are subject to fewer violations, and better stand the test of time than judgments or agreements that are the product of years of litigation.

All that said, the reality is that many spouses who are engaged in mediation obtain assistance from mediation-friendly attorneys who act as Mediation Coaches. Although Mediation Coaches do not attend sessions or interact with the mediator or other spouse, they often play an important role in the crafting of a final Separation Agreement. Unlike the mediator, who must maintain neutrality at all times, an attorney acting as Mediation Coach is loyal only to his or her client. Mediation-friendly attorneys acting this role understand how to educate their clients, so that clients become more effective mediation participants, leading to clearer goals and outcomes.

Because the mediator is a neutral third party whose role is to help the parties come to their own agreement, mediators cannot make decisions about the divorce on behalf of either spouse or help one spouse at the expense of the other. This includes giving legal advice during the mediation. Additionally, the mediator cannot require a spouse to take a specific action, like agree to a proposed solution or even be present at one of the mediation sessions, by placing sanctions or other penalties on the non-performing spouse.

These limitations gives the divorce mediation process its hard-earned reputation for flexibility and fairness. By having a mediator who can only facilitate, not dictate, how negotiations progress, mediation allows the spouses to develop their own solutions to their own unique situation.

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.