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How does divorce mediation work in Massachusetts?

Submitted by Citychick on Mon, 06/13/2011 - 13:15

My husband and I are getting a divorce after six years and, thankfully, no kids. Our areas of dispute will likely be financial, who gets what. I'd like to get a mediator but my husband is opposed and wants to work it out without any help. Could you tell me, briefly, so I can tell him, how the process would work? I mean the nuts and bolts of what we would actually do in a mediation. I think he feels the process will be too intrusive. Thank you.

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Mediation process

Submitted by The Editor on Mon, 06/13/2011 - 14:53.

The process will vary, of course, depending on who you hire as a mediator.  But, initially, the mediator might sit down with both of you and explain the process and the rules.  She may take this opportunity to discuss the cost of mediation.  She will then obtain your consent, and your husband's, to move forward with a voluntary mediation.  At that point, the mediator will likely schedule a joint session where you and your husband can express your positions and concerns, what you hope to resolve through the mediation process.  During this phase, the mediator usually takes great care to allow each party to express themselves fully, without interruption or arguement from the other party.  The idea is to allow each party to listen to what the other party wishes to accomplish.

Next, it's common for the mediator to develop a "game plan" or "mission statement" that lays out the concerns of the parties, what they hope to resolve, and any areas of agreement.  For exasmple, the parties may agree on what will be done with the marital home, but need to resolve a dispute over custody or visitation. 

With the game plan complete, the mediator will either meet with both parties or with one party at a time, and attempt to clarify the facts behind the dispute.  Once the mediator is convinced that she understands the facts and the positions of the parties, she will attempt to move the parties toward resolution by developing possible options for resolution that the parties can discuss and modify.  Hopefully, those discussion will lead to an agreement.

The agreement is then reduced to writing and, if applicable, reviewed by the attorneys for each party. In some cases, the parties to mediation will have already hired attorneys and, in fact, may have already begun traditional divorce proceedings before moving to mediation.  

If no resolution is reached, then the parties will have to follow the more traditional, court centered, divorce process. Your husband is correct: Mediation can be intrusive, in the sense that it requires both parties to reveal information and discuss their feelings about a dispute.  However, if you are unable to solve the dispute out on your own, the process of getting a divorce through a court is equally intrusive and usually a lot more expensive.  Good luck.

Re: Mediation Process

Submitted by BostonLawMan on Thu, 08/09/2012 - 10:01.

To build upon what The Editor has stated, it is worth noting that statements made during mediation cannot be used against that party in any subsequent proceedings. In other words, the process is meant to facilitate honest and candid discussion without the fear that these candid discussions will be twisted and used in later divorce proceedings.

It is also worth noting that while ADR, and mediation in particular, is certainly intrusive, messy and carries some cost, it pales in comparison to the intrusiveness and cost of divorce proceedings in Probate and Family court. In conclusion, after witnessing dozens of divorces during my time as a clerk for Probate and Family court judge, I cannot state how important it is that parties exhaust all possible avenues before turning to the courts.

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