Because divorce mediation is conducted outside of the courtroom between you and your spouse, there is often only one single court appearance that needs to be made over the course of the entire divorce – i.e. when the divorce papers need to be filed with the court. If parties each want the mediator to attend the hearing, this can generally be arranged, with certain limitations. For example, spouses must remember that even if their mediator is a divorce attorney, the mediator would not be acting as an attorney for either party (or both) at the hearing, and would not give legal advice. Moreover, most mediators will be very reluctant to appear as a witness before a judge, even in an uncontested hearing, where the work product of a mediation is barred from disclosure in any court proceeding.
In rare occasions, spouses currently going through a divorce mediation may need to make a court appearance for matters related to their divorce. For example, the tension in divorce is so high that it leads one spouse to file a restraining order against the other, or child custody needs prove to be contentious enough that a temporary court order becomes necessary to prevent a situation from escalating. In these instances, Massachusetts law protects mediators from being served with subpoenas or from otherwise being compelled to testify on behalf of one or both spouses.