Massachusetts Divorce Mediation FAQs

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.

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.