Massachusetts Divorce Mediation FAQs

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.

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.

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.

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.

By encourage each spouse to negotiate for their individual interests, while encouraging respect and dialogue when considering the other spouse’s needs and desires, divorce mediation is often the best way for separating spouses to reach a fair and mutually beneficial resolution in their divorce.

The mediation sessions that are the backbone of the mediation process let each spouse decide what is best for them and how they want to pursue it. At the same time, by placing the spouses in the position of direct negotiation, mediating spouses tend to have a better appreciation for the specific compromises and tradeoffs that were required to make a final agreement. This enables each spouse to prioritize the outcomes they seek from the divorce process that will let them move on and adapt to life after the divorce has become final.

Attorneys play a crucial role in the family law system. However, one byproduct of attorney involvement in an adversarial system is leverage. It is the attorney’s job to identify and exploit the weaknesses and fears of an opposing party. Thus, attorney-negotiated agreements often include elements of dominance and submission, in which one spouse has submitted to the will of the other spouse out of fear, rather than compromise. These power dynamics can lead to less outcomes than mediation, in which leverage takes a back seat to compromise.

A secondary feature of attorney involvement is that attorneys invariably have a very clear picture in their minds of what constitutes a “fair” outcome in a given divorce. Indeed, it is the attorney’s job to explain to a spouse what a fair outcome would be for the client, and most attorneys do this job well. However, what sometimes gets lost in the attorney analysis are the true feelings and desires of the client-spouse, which can be overshadowed by the strong, confident voice of an attorney who thinks he or she knows best. The attorney may dig in and fight on an issue the spouse does not truly consider important. Conversely, the attorney may dismiss issues the spouse feels are extremely important because the attorney’s perspective differs.

Without the presence of attorneys during mediation sessions, the voices of each spouse tends to rings true with respect to a spouse’s deeply-held interests, needs, and concerns for their future well-being, giving the spouses an unfiltered opportunity to articulate what matters most. Additionally, the presence of the mediator during these sessions reduces the power dynamics that can result in pressure and leverage while ensuring that there is no undue influence or imbalance in bargaining power that could result in an unconscionable result. Together, the unique opportunity that mediation provides for spouses to speak and be heard in a controlled environment increases the likelihood of a fair outcome for both spouses.

While divorce mediation and divorce litigation are both dispute resolution methods, they achieve their results through very different methods.

On the one hand, litigation focuses on providing justice to the right party. Because obtaining justice assumes that one spouse in the divorce is “right” and the other spouse is “wrong,” litigation relies on attorneys making arguments to a judge. Where an attorney’s sole loyalty flows to his or client, the result is an adversarial process which focuses on exposing the weaknesses of the other party.

Divorce mediation, on the other hand, is a flexible and voluntary process that focuses on finding common solutions by capitalizing on each spouse’s individual and collective strengths. Mediation looks past the idea that one spouse is “right” and the other is “wrong.” Instead, mediation focuses on common goals and interests that spouses continue to share, even after their marriage has eroded, with a focus on how both spouses can best move on after the separation becomes finalized. This gives mediation a forward-thinking, amicable, and cooperative attitude that can help you and your spouse find the resolution that helps everyone.

Divorce mediation and divorce arbitration are different methods of dispute resolution or ways of resolving the issues that arise when you and your spouse decide to pursue a divorce.

In divorce arbitration, spouses essentially hire a private judge to resolve their divorce. (Indeed, a great many arbitrators are quite literally retired judges.) The main advantage of arbitration is control over the schedule and litigation process when spouses know they are destined for a contested trial. Within the court system, it is common for spouses to wait years for a trial to take place, and delays are common. With an arbitrator, spouses guarantee the availability of their “judge”, and in many instances, end up spending less money than they would in a trial in court, even after paying the arbitrator’s fee.

Of course, arbitrating one’s case is really the opposite of settling. The arbitrator’s hearing might be less formal than a real trial, but the reality is that an arbitration is essentially a trial, with lawyers, evidence in witnesses all behaving in similar ways as they would in a trial. Moreover, the increased flexibility comes with a price: an arbitration result, called the “award,” is nearly impossible to appeal.

In any event, what is most important to understand when comparing arbitration to mediation is this: arbitration amounts to a private trial, while mediation process is designed entirely to avoid the trial process. An arbitrator listens to evidence and arguments and decides issues for the divorcing spouses. For attorneys and clients, preparing for an arbitration hearing is nearly identical to preparing for a trial in court. In contrast, mediation generally avoids the direct involvement of lawyers, and focuses on direct negotiation between the spouses. Instead of deciding issues for the spouses, a mediator facilitates agreement between the spouses directly.

For spouses who are absolutely certain that they will never agree, an arbitrator is good option for breaking the logjam and making the tough decision. For spouses who want to avoid trial (or a close facsimile of trial), mediation generally represents the more cooperative, less expensive and less stressful option.  

Yes, a divorce agreement that is the result of the divorce mediation process is just as legally binding as an agreement hashed out by attorneys during litigation (or ordered by a judge after trial). Indeed, one might say that the whole point of the mediation process is to produce an enforceable, legally binding agreement that can be filed with the court as an enforceable contract. Once made, a Separation Agreement solidifies the rights and obligations of you and your spouse in the divorce. If you think your spouse is not upholding their end of the bargain, you can bring it to the attention of the court through a Complaint for Contempt.

However, one of the great benefits of divorce mediation is that resulting agreement tend to be violated less frequently than agreements that are the product of litigation. This tends to be true because both spouses have more control over the completed agreement through the mediation process than spouses who reach agreement through the coercive pressure of litigation. Mediated agreements tend to fall more precisely in line with the future needs and interests of spouses, avoid many of the resentments and frustrations with the litigation process that can motivate violations. Additionally, because both spouses contribute to a mediated agreement, former spouses often take a measure of pride in authorship, with results in better compliance with the agreement’s terms.

A valid divorce agreement that is the result of the divorce mediation process is legally binding in all the same ways as an agreement that is the product of litigation. Accordingly, once a mediated divorce agreement has been finalized and approved by a judge, a spouse who fails to comply with the terms of the agreement may be subject to a contempt action. The contempt powers of Probate and Family Court judges are broad, and violations can result in anything from financial sanctions to the loss of parenting time to incarceration.

However, enforcement problems tend to be rarer for divorce agreements that are the result of mediation compared to agreements that are the product of litigation. This is because mediated divorce agreements represent terms that both spouses agreed upon cooperatively, during the mediation process, while litigated agreements often arise out of coercive pressure that arises from the adversarial nature of a contested divorce.

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.

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.

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.

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.

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The cost depends on the time involved in the mediation. Generally speaking, between two identical divorces, the divorce that is mediated will cost less than the divorce that is litigated. There are several reasons for this. First, instead of both parties paying for separate attorneys, the parties instead share the cost of a single mediator. In addition, the litigation process requires a great deal of formal obligations for each attorney: They must attend mandatory court hearings, exchange mandatory discovery, and take trial preparation steps from early in the case to protect and prepare each client for a potential trial. Mediation, on the other hand, is a voluntary process that spouses engage in without the pressure of court-imposed deadlines and multiple litigation-driven steps, such as extensive discovery, deposition and multiple court hearings.

As with retaining an attorney, mediators charge an hourly fee. While it is difficult to predict the ultimate cost, the mediator will review the many ways in which spouses can control mediation costs through their own actions, along with the events and issues that tend to increase the cost of mediation, including extensive document review and scheduling multiple mediation sessions to address multiple narrow issues.