Massachusetts Divorce Mediation FAQs

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.

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.

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 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.