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?

South Shore Divorce Mediation offers mediation coaching for individuals engaged in mediation who seek guidance during the negotiation process. For individuals proceeding without a coach, preparing to negotiate involves identifying clear goals for mediation, conducting research and gathering knowledge on legal and financial issues, approaching the negotiation patiently, and continually revising and re-focusing on your goals to ensure you obtain an optimal outcome. For a more comprehensive rundown on preparing for mediation, check out Carmela Miraglia’s blog, Four Negotiating Tips for Divorce Mediation.

One of the primary challenges for participants who enter mediation without an attorney is recognizing, articulating and negotiating legal issues. Mediation participants regularly seek out experienced divorce attorneys to mediate their divorce. Using an experienced attorney as a mediator is especially helpful when it comes to drafting a reliable Separation Agreement that reflects the intent of the participants in appropriate and enforceable terms. However, the mediator is not acting as an attorney for either participant and cannot provide legal advice during mediation sessions. Mediation coaches often fill in the gap on legal arguments by assisting clients in identifying and advocating their positions in the face of legal issues. For a rundown on how mediation coaches help with legal issues, check out Kim Keyes’ blog, How Basic Legal Arguments Can Help Non-Lawyers in Divorce Mediation.

Having an attorney as a mediation coach is often helpful during mediation. Our mediators encourage spouses to work with mediation-friendly attorneys while a mediation is ongoing. We also offering mediation coaching services to clients who are engaged in mediation with another mediator. Mediation-friendly attorneys who act as mediation coaches can often play a positive role in mediation by offering their client the type of direct and candid legal advice that a mediator – who is acting as an impartial third party – cannot offer to either spouse. Moreover, if a complaint for divorce has already been filed, spouses can take a break from litigation to try mediation – and continue to take advice from their attorneys during the process.

Whether you should use a mediation coach depends on the specific circumstances of your case.

One of the strengths of the divorce mediation process is that there are no attorneys at the mediation sessions to push you or your spouse to try to get more out of the divorce. Without lawyers advocating on your behalf inside the room, you and your spouse are in a far better position to come to a mutually beneficial resolution that you can both live with over the long term, rather than one that strongly favors one spouse or the other.

However, it can often help to use an attorney as a mediation coach who coaches you on negotiating strategy and tactics, advised you about the law, and helps you prepare and review financial documents and proposed agreements.

Sometimes one spouse has an upper hand in the bargaining process. This might result from the spouse’s intimate knowledge of the law, a better understanding of finances, or simply a strong (or overbearing) personality. Having a mediation coach to guide you through the mediation process can be very helpful. Indeed, many spouses who go through the divorce mediation process find that having a mediation coach is a great way to hone their negotiation abilities, set goals and develop discussion plans, and build confidence that can make a big difference during the mediation sessions.

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.

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.

It may be possible to include third parties in a mediation, but it is important to resolve the groundworks for the involvement of outside individuals before inviting them to mediation sessions. In particular, outside experts such as financial experts or child therapists can aid the mediation process by presenting their expertise for both parties. (It should be noted, of course, that such third party specialists often need to be paid for their time.)

Mediation that includes each party’s use of a mediation-friendly attorney can also be productive, so long as the spouses, mediator and attorneys all agree to appropriate ground rules before meeting in person. In general, however, divorce mediation thrives on separating spouses talking candidly and honestly with one another, which is typically easier with only the spouses and mediator in attendance. If both spouses bring an attorney to the mediation sessions, the lawyers have an invariable tendency to dominate the conversation (we make this observation with affection, given that our mediators are themselves lawyers). Perhaps most importantly, the direct involvement of attorneys greatly inflates the price of mediation.

It is important to distinguish between the direct involvement of attorneys in the mediation process and the far less direct involvement of lawyers as Mediation Coaches. An attorney acting as a Mediation Coach does not attend mediation session; he or she assists a spouse with the mediation process from the outside, offering advice on negotiations and specific legal issues. Most mediators encourage spouses to use mediation-friendly attorneys as Mediation Coaches, as these attorneys can provide legal advice and undivided loyalty to a spouse in a manner that a neutral mediator cannot.

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.

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.