Even when you and your spouse are amicable, the divorce process can be emotionally and financially challenging. Mediation can help you better navigate through this difficult time for many reasons. It is much faster than going to court in a contested divorce, which can take years, it is far less costly when it comes to legal and expert fees, less stressful, and more convenient as mediation is generally conducted virtually by Zoom.
So how to get started? A crucial first step is to ensure that your mediator and your family law attorney are truly committed to alternative dispute resolution and that they have extensive mediation experience. Avoid hiring an attorney that is not supportive of the mediation process or tells you that they can get you a better result at trial. Such an attorney likely does not understand the benefits of mediation or worse, is trying to increase their own fees by generating conflict.
Once you have chosen your professionals, what’s the best way to prepare for your first divorce mediation? To help ensure that the process is efficient and the information is comprehensive, here are some suggestions.
Assemble necessary documents
Getting divorced requires a fair amount of documentation, both to assist you in negotiating terms, ensuring that both parties may give informed consent, and as required by the Massachusetts Probate and Family Court. In particular, financial documents will be among the many items you may need to refer to through the mediation. Get ahead of any requests and collect important documents to avoid delays that may disrupt the flow of mediation or even cause you to have to suspend the mediation process until you are able to obtain the information.
Documents you should include:
- A list or table setting forth all of your assets, liabilities, income, and expenses. You may fill out the Massachusetts Probate and Family Court Rule 401 Financial Statement that is required to be filed with the court (long-form if you make over $75,000 annually; short-form if you earn less than $75,000 per year). Information, instructions, and links to financial statement forms can be found here: https://www.mass.gov/filing-financial-statements-in-the-courts. Or, you may choose to do a spreadsheet. If you and your spouse cooperate to create a spreadsheet, it is most helpful to list everything in three columns: one column for each of you and a third column for jointly owned, owed, or earned amounts. If you own your own business or own rental properties you will need to separately list business/property expenses and net income.
- Recent pay stubs, W2 and/or 1099 forms, full tax returns, recent bank, investment, and retirement account statements
- A certified copy of your marriage certificate, which you can obtain from the clerk in the town/city where your marriage was registered
- Documents relevant to your divorce, such as prenuptial or postnuptial agreements, trusts, life insurance policies, health insurance policies, adoption or guardianship papers, name-change or naturalization papers
- Court filings, pleadings, or orders
- Any forms your mediator requests you to fill out before your first session
- Any other documents that may be helpful or relevant to the divorce process
Once your papers are in order, you can prepare yourself for mediation.
Retain support counsel
You don’t have to go through a mediation alone. A divorce/family law attorney can be with you every step of the way to advise you and represent your interests, and at a minimum, should review any draft agreement before you sign. This is because even if your mediator is an attorney, a mediator cannot give you legal advice, only legal information, and cannot advocate for you. Specifically, an attorney can explain the provisions of Massachusetts law, advise you on different scenarios and what might be in your best interests, and help prepare and review documents and any proposed agreements. If relations between you and your spouse are particularly strained, your attorney may even accompany you to mediation. If you are unable to be in the same space with your spouse, your mediator may engage in shuttle negotiation, such that they will meet with you/your attorney and your spouse separately for part or all of the sessions.
Approach mediation with a goals and interest-based mindset
In preparation for your first mediation session, rather than thinking about what your “position” and your “bottom line” is, think about your interests, needs, and goals for the process and your divorce agreement. You may find that you and your spouse have a lot of goals in common, which can help you work through conflicts constructively. Try to keep an open mind as you engage in the process.
It is most helpful to focus on problem-solving and future outcomes, instead of dwelling on the issues that caused your divorce. A good way to look at it is that you and your spouse are unwinding a partnership and you need to work together to do that in a way that is fair and equitable for you both. If you have children, remember that you and your spouse will continue as co-parents even as the marriage ends, and even if your children are grown. Every decision you make will impact your children. Your mutual ability to work through conflict without perpetuating hostility will greatly help your children in transitioning through the divorce and help prevent them from suffering long-term emotional damage. Your mediator can help you and your spouse come up with ways to handle conflict during the mediation process, such as taking breaks, tabling an issue temporarily and turning to different topics, etc.
Consult with Nussbaum Family Law LLC for more information about Mediation
Mediation makes the process of resolving your divorce or other family law issue much easier, faster, less expensive, and less stressful than litigation. Consult with a mediator/family lawyer for more information on the mediation process in Massachusetts and how it can work for you.