Man and woman meeting with divorce mediator

A Step-By-Step Guide to Divorce Mediation

When your divorce ends up in court, you face the prospect of a lengthy, financially, and emotionally draining process. Often, even years after judgment, you may have to continue fighting your former spouse over ongoing custody, child support, or alimony issues. There is a much better way. 

Mediation for your Massachusetts divorce helps you and your spouse resolve your conflicts on your terms instead of leaving them to an overworked judge. Mediation allows you to divorce in a fraction of the time of a court case—months rather than years. Instead of spending financial resources on steep legal fees, you can preserve funds for your life post-divorce and, if you have children, for their future. Mediation can help you form a working co-parenting relationship with your former spouse, crucial to your children’s emotional wellbeing. With a mediator’s guidance, you and your spouse can negotiate all of the terms of your divorce to reach a mutually acceptable agreement. 

How Does Divorce Mediation Work?

Divorce mediation in Massachusetts is voluntary. You and your spouse are at the table by choice. Mediation is also a confidential process—nothing either of you or the mediator says or writes in mediation is admissible in court. Your mediator is a neutral third-party who helps you and your spouse have a constructive dialogue about all aspects of your separation and divorce, which may include child custody, visitation/parenting time, child support, payment for extracurricular expenses, alimony, college education costs, health insurance, property/asset/liability division, life insurance, and taxes. 

Unlike a judge in a courtroom or an arbitrator, your mediator doesn’t make decisions or impose solutions. Instead, the mediator gives you information on the divorce process and relevant law and standards; allows each of you to voice your interests, needs, and concerns; and guides your conversation. Your mediator can also offer you options when you and your spouse need direction, and assist you in finding your own resolution.

Benefits of Mediation

There are several reasons why mediation is better than litigation: 

  1. Mediation lets you be in control of all of the decisions. Unlike court, where a judge may or may not accommodate your individual family dynamics and needs, with mediation you get to decide the outcome. 
  2. Mediation will save you money. The total cost of mediation for you and your spouse together is usually less than the initial retainer that you would each have to pay a trial attorney. 
  3. Mediation is much faster and more efficient than litigation. With mediation you can complete your divorce in months, while in court it can take years before your case gets to trial. Also, unlike litigation, which may require several trips to court, you can have your entire mediation conducted over video (Zoom), making scheduling easier, more flexible, and allowing you to be virtually anywhere. 
  4. Unlike a court case, which can be filled with conflict, mediation promotes a practical, problem-solving approach, which results in less stress throughout the process. Mediation can be particularly beneficial for couples with children, as it helps foster improved co-parenting relationships post-divorce. 

Pre-Mediation Steps

Before the mediation process, there are several steps that you and your spouse should take to ensure a smooth process. First, select a mediator who is a good fit for your situation, considering factors such as professional background, experience, style, and fees. Once you have chosen your mediator, you should gather all necessary financial documents and information, which may include recent pay stubs, tax returns, bank statements, and property deeds. If you are able, creating a single document setting forth your separate and joint assets, debts, and income will make the mediation process more efficient, as this information will be crucial in discussing asset division. 

Step-By-Step Guide to Divorce Mediation

  1. Initial Consultation: In this meeting, the mediator will explain the divorce process, the applicable legal standards, and the mediation process. You, your spouse, and the mediator will establish ground rules, and set the agenda for your mediation. You each will have the opportunity to voice your interests, goals, and concerns for the process and the outcome.
  2. Information Gathering: During this step, relevant financial and personal information (such as income, expenses, assets, and debts) is identified and if available, shared and organized. Transparency and honesty are mandatory for the success of the process. When you file with the court, you will be required to file a Probate and Family Court Rule 401 financial statement, which you must sign under the pains and penalties of perjury. 
  3. Issue Identification: Here, you and your spouse will identify primary issues to be resolved. Such issues often include child custody, parenting time and support, spousal support/alimony, college costs, or division of assets. The mediator guides this process to ensure all relevant matters are considered. Even where you and your spouse agree, there are usually logistical issues to work through, such as what to do with the marital home in a difficult market, or how to divide different types of assets such as retirement funds, stock options, etc.
  4. Negotiation: With the mediator’s assistance, you and your spouse will negotiate to resolve each identified issue. Your mediator helps to keep the conversation respectful, focused, and efficient, helping you manage any conflicts that may arise.
  5. Neutral Specialist: During the course of mediation, you and your spouse may wish to engage the services of a neutral specialist, such as a parenting coach to assist you with custodial or parenting time issues, a property appraiser for a buyout analysis, and/or a certified divorce financial analyst (“CDFA”) to assist you with complex asset valuation/division issues or income flow issues. Unlike in litigation, where you may be forced to engage in a lengthy and expensive “battle of the experts,” a neutral specialist can assist you in reaching resolution of a thorny issue quickly and efficiently, which in turn can help speed your mediation.
  6. Agreement Drafting: Once all issues have been discussed and agreements are reached, your written agreement is drafted. In Massachusetts, if your mediator is an attorney, they may draft your agreement for you. If your mediator is not an attorney, they may draft a memorandum of understanding of the terms, which an attorney would then incorporate in an agreement.
  7. Review and Signing: Both you and your spouse must review the drafted agreement carefully, each with your own attorney. With your attorney’s input, you may propose revisions at this stage. Once you and your spouse agree on the final version, you must each initial and sign the agreement before a notary public, marking the end of the mediation process.

Post-Mediation Process

After signing the separation agreement, the next step is to file it with the Probate and Family Court of the appropriate county. If your divorce is an uncontested, “1A” divorce, you must also file the other required documents, including a Joint Petition for divorce, a certified copy of your marriage certificate, an Affidavit of Irretrievable Breakdown, Affidavits of Care and Custody if you have a minor child, a Report of Divorce Absolute, and a Rule 401 Probate and Family Court Financial Statements. Once the clerk has determined that your paperwork is complete, you will receive a notice of hearing. If your divorce was previously filed as a contested, “1B” divorce, you will only have to file your separation agreement and current Rule 401 financial statements.

Everyone getting divorced in Massachusetts must have a hearing before a judge. However, with a separation agreement, the hearing usually takes under 10 minutes and often is scheduled before the contested cases or in a separate session, getting you out of court much sooner. During the hearing, the judge will review your agreement to ensure that it complies with legal requirements, is fair and equitable to both parties, and, if applicable, is in the best interests of the children. When approved, your agreement will be incorporated in the divorce judgment. 

Tips for Successful Divorce Mediation

To help your mediation succeed, it is important for you and your spouse to approach the process with transparency. Mediation is a forward-looking process intended to lay the groundwork for post-divorce life. Full disclosure of all assets, debts, and income is crucial to create a fair agreement. Also, being prepared to listen to each other’s perspective can help you find common ground, meet your respective goals, and, if applicable, your children’s best interests.

Finally, seeking independent legal advice from your own lawyer is essential to understand your rights and obligations under Massachusetts legal standards, to make sure that your decision-making during mediation is fully informed, to ensure that the agreement is in your best interests, and that it accurately sets forth your intent. 

Getting Assistance with Your Divorce Mediation

Divorce mediation offers a faster, less expensive, and less stressful path through the complex journey of Massachusetts divorce. By understanding and navigating the mediation process effectively, you and your spouse can find a resolution that meets your individual needs and the best interests of your children. 

If you are considering divorce mediation, Nussbaum Family Law LLC can guide you through the specifics of your situation and help you make informed decisions, whether you are seeking a mediator or a mediation support attorney. Reach out to our office today.