Massachusetts Divorce Mediation FAQs

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.

In many divorce mediations, one or both participants’ inability to move past their negative emotions is a primary impediment to reaching resolution. A spouse’s anger can undermine the negotiation process, and participants are often required to process negative emotions during the process in order to succeed. Luckily, divorce mediators use a variety of techniques to translate negative emotions into more productive, settlement-positive motivations during the mediation process. For details, check out Nicole Levy’s blog, Overcoming Negative Emotions in the Mediation Process.

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.

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.

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.  

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.