Massachusetts Divorce Mediation FAQs

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.

The Co-Worker Rule is a simple rule of thumb for mediation participants who are struggling to set aside their anger or difficult history with their spouse. The rule states that spouses should seek to interact and communicate like co-workers in a professional environment instead of like former spouses. Although it sounds simple, divorcing spouses often find it difficult to create appropriate boundaries after so many years of sharing their unfiltered thoughts with one another. The Co-Worker Rule provides a simple standard of conduct that most individuals can understand and attempt to observe. For more information, check out Kim Keyes’ blog, Setting Boundaries During Divorce: The Co-Worker Rule.

The duration of the mediation process varies based on factors including the substantive issues that participants agree or disagree on, the relationship dynamics between participants, each spouse’s motivation and engagement level, and the complexity surrounding family income and assets.  For a complete rundown on the factors effecting the length of divorce mediation, check out Nicole Levy’s blog, How Long Will My Divorce Mediation Take to Complete?

Mediation is far more flexible than litigation, which requires at least one party to file a Complaint for Divorce (or modification or contempt, etc.) in order to commence the process. It often works best to initiate mediation before either party starts litigation, but parties routinely enter mediation midway through litigation with great success. For more coverage surrounding mediation timing, check out Carmela Miraglia’s blog, When Should You Start the Divorce Mediation Process?

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.

While mediation is a good way to resolve a divorce, it is by no means a guaranteed success. Sometimes mediated divorces break down, leaving divorcing spouses without a completed divorce agreement to take to court to finalize their separation. When this happens, there are three paths that you can go down: Litigation, try another mediation, or independent negotiation. Alternately, sometimes spouses benefit by simply taking a break from mediation, then returning several months later after heads have cleared.

The most common path to take after an unsuccessful mediation process is litigation. Mediation typically helps resolve the relatively uncontested issues in your divorce at the outset. This leaves the more contentious divorce issues to be wrestled with, and this can feel so overwhelming that the mediation process might not seem up to the challenge. This is when many spouses opt out of the mediation process for the more traditional divorce trial, where they believe a judge will break the logjam by deciding difficult issues on behalf of the spouses.

Some divorcing spouses leave one mediation process for another. This can happen when one spouse has become disillusioned with the mediator, often because they think the mediator is biased or is not listening or is not moving quickly enough. Because mediation is totally voluntary, either spouse can end the process at any time.

Finally, some spouses elect to try resolving their issues on their own, independently of the courts or any mediators. This can happen when the mediation process goes so smoothly that the spouses become confident in their ability to resolve their own differences without a referee between them.

Regardless of what happens after a mediation process that did not produce a finalized divorce agreement, the mediation itself was not necessarily unsuccessful. Even incomplete mediations often narrow down the issues that still a resolution, moving you towards the divorce agreement that you and your spouse are looking for.

Even if you and your spouse are unable to come to a satisfactory agreement on all of the issues during mediation, any progress made during mediation can help immensely if you choose to take your divorce to court. In short, mediation tends to be less expensive than litigation, so any issue that you are able to resolve through mediation is one less that will have to handle in court.

In fact, this is one of the greatest strengths of mediation: By working collaboratively with your spouse, you can narrow down the issues for litigation to solve, saving time, money, and lots of stress. It is important to note, however, that the burden lies with the spouses and attorneys to preserve the agreements reached during the mediation process. Under Massachusetts law, a mediator cannot be forced to testify in a litigated divorce, and all of the information and statements made during mediation are confidential and inadmissible in Court.

Because it is simply another way of resolving any disputes that you might have with your spouse as you pursue a divorce, divorce mediation is designed to handle any of the issues that might come up in your case. This includes problems that are often easy to settle as well as the ones that are typically far more difficult, including child custody and parenting time, how to divide marital assets, as well as child support and alimony. In addition, mediation is frequently used to resolve post-divorce issues that would otherwise result in the filing of a Complaint for Modification or Complaints for Contempt. Mediation is even a highly effective method for preparing prenuptial agreements. Indeed, family mediation is not limited to divorce at all. Unmarried parents who would otherwise litigate child custody and child support issues in Probate and Family Court often find the same success in mediation as divorcing spouses.  

In fact, any domestic relations issue that can be handled in Probate and Family Court can also be resolved in mediation. This is because litigation and mediation are simply two different methods of resolving disputes. What the dispute is about does not matter – only the path to an answer changes.

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.

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.

In Massachusetts, even divorces that are completely resolved through the mediation process must to be filed in court to be effective. If a mediated divorce agreement is not filed in court, it will not be enforced as a divorce.

If your mediator is an attorney, you can generally rely on him or her to help you prepare a Joint Petition for Divorce, as well as supporting forms and filing instructions. Mistakes in the filing process can raise legal implications down the road, so preparing and filing a petition properly is crucial. The mediators at South Shore Divorce Mediation are all experienced divorce attorneys.

If your mediator is not an attorney, a greater burden may fall on you and your spouse to file the property documents with the court. In Massachusetts, the proper documents to file depend on the nature of your divorce. Divorces featuring children under the age 18 require spouses to file additional documents, and attend the Parent Education Class prior to an agreement being finalized.  

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.

Being prepared for a mediation session is the best ways to make sure it goes smoothly. If you are not prepared for a session, it can prolong the mediation process and increase costs over time. A lack of preparation can also frustrate your spouse and could increase the stress levels. If being unprepared becomes a habit, the mediation process can sputter, making the others stakeholders doubt the non-performing individual’s commitment.

Typically, a mediator will finish every session with a summary of what was accomplished and what will be covered in the next session. This often includes a checklist of information and documents that you will need to provide in the next session – basically a homework assignment for the next session. While this often proves helpful for subsequent sessions, it will not help you prepare for your first session.

For your first mediation session, it is often helpful to have a complete list of the assets that you own (or you think you might own). This includes bank accounts and retirement funds, real estate, vehicles, and valuable personal belongings, as well as anything else that might be valuable, plus all of your outstanding debts. Financial records relating to you or your spouse’s income are also helpful, as is a list of your recurring expenses. School records relating to your children, or specific child-related costs, can also be helpful. Together, these records can give all involved a sense of a couple’s current lifestyle and flag potential conflicts or sources of discussion to be ironed out during the subsequent mediation sessions.

Finally, it is helpful to reflect on your goals for the future before the first mediation session begins. Having an idea of the outcomes you are seeking after the divorce is complete can help you negotiate more effectively and helps the mediator prioritize issues.

The best time to start mediation is whenever you and your spouse each feel ready to start mediation. This can come at any point during the divorce process. You can start going to mediation before you and your spouse have finalized your decision to separate. Or you can pursue mediation after filing a Complaint for Divorce. The key is that both spouses needed to be ready. Many former spouses mediate post-divorce issues after the divorce is finalized.

In general, spouses who start mediation early on in their divorce tend to find that they get better results from the process. When spouses attend mediation sessions early, they can identify which issues are going to be contentious from the outset and can work to find mutually satisfactory resolutions before either spouse becomes too emotional or entrenched. If there is already animosity between the spouses when mediation starts, it can make it more difficult for the mediation process to move things forward in a productive way.

During divorce mediation, there are three individuals involved: two spouses and a mediator.

The role of each spouse in divorce mediation is to negotiate fairly and calmly, and be ready to listen and accept solutions that he or she might not have come up with on his or her own. This cooperative attitude is the backbone of the mediation process, and if one spouse fails to cooperate, mediation becomes far more difficult to accomplish successfully. This is why it is so important for each spouse to take their role as a negotiator seriously, and to give the process a chance to produce results.

As for the mediator, his or her role is varied, with mediators frequently customizing their approach depending on the needs of the spouses in the divorce mediation. One of the main roles of a mediator is as a referee or observer of the discussion. By acting as a neutral third party, the mediator serves as the meeting organizer – bringing both spouses into the conversation and moving it along productively – and communication facilitator. However, the mediator also serves to educate the spouses of the issues that should be resolved, and whether their proposed solutions overlook or adequately solve problems that often come up during and in the years following a divorce.

Finally, part of a mediator’s role is to use their experience and knowledge of the divorce process to inject practical wisdom into the divorce at issue by asking pointed questions, using solutions from prior mediations as examples, and sometimes even by serving as devil’s advocate to challenge a potentially weak proposal for the purpose of making it stronger.

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.

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.

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 meeting, spouses are encouraged to bring whatever documents each think may be relevant. However, the main purpose of the initial meeting 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. The initial meeting allows both spouses to get an idea of how mediation will work and get a briefing of the process. After the initial meeting, 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 initial meeting.

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) 253-2049. 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.

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.

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.

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 meeting 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 meeting.
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.