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We're considering doing a mediation for our divorce before we have to go to court. The usual reasons like wanting to keep it civil for the kids (we have 2). My wife is 100% on board and I like the idea too but I worry about how secure the process is. I guess I have this movie image idea of a mediation being a thing where everyone says what's on their mind and, hopefully, at the end we can agree on our current disagreements: house, custody, support. Am I safe in assuming that anything I say or admit to in the mediation will remain in the mediation and not come back to haunt me if the mediation fails and we have to go to court for a 'normal' divorce?

 
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Confidentiality in Mediation

You can take a look at Massachusetts General Laws, Chapter 233, Section 23c:
 
All memoranda, and other work product prepared by a mediator and a mediator's case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding[.]
 
What all that boils down to is that anything you or your wife say during the mediation that is relevant to the process, while in the presence of the mediator, is and shall remain confidential.  Similarly, the mediator cannot be called as a witness in a subsequent divorce proceeding and her files cannot be used as evidence.  However, you should understand that in an adversarial divorce, discovery is used by both sides to "uncover" the truth.  For example, if your mediation fails and you proceed to divorce court, your wife can use discovery to verify that you are not hiding marital assets.   In other words, just because you discuss some matter during mediation, that does not in any way shield that information from being discovered by other legal means during the divorce process.  I'm not sure what types of information you think might come back to "haunt you,"  but depending on the answer to that question, you may want to discuss the matter with an independent divorce attorney before going into mediation.  Hope that helps.
 

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