Private mediation is an alternative to litigating your divorce. Litigation is the familiar “adversarial process” where you and your spouse each hire an attorney, and then the two attorneys negotiate directly with each other and make court appearances on behalf of you and your spouse. There are also alternatives to litigation such as private mediation, conciliation, arbitration, dispute intervention, collaborative law, and court-connected mediation.
All forms of alternative dispute resolution (often called “ADR”) are distinct and have their own unique attributes.
Private mediation1 is a voluntary and confidential process designed to help individuals reach agreements on the financial, parenting, and other issues raised by their divorce with the assistance of an impartial, professional, third party. The goal of private mediation is to assist you and your spouse with identifying and clarifying the issues to be resolved and to achieve a written agreement before you go to court.
The impartial third party, or mediator, is usually an attorney or a mental health professional. The role of the mediator is to help you and your spouse exchange information, freely discuss issues, and negotiate an agreement, which is acceptable to both of you and to the court. The mediator does not have the power to make decisions for you, like a judge or an arbitrator would, but rather will help facilitate resolution.
There are good reasons why you may want to mediate instead of choosing traditional litigation. People are generally more satisfied with the agreements they make for themselves, and more likely to follow them, as opposed to a judgment imposed on them by the court. Mediation can help improve communication skills with your spouse and help navigate the waters of the divorce process with minimal hostility. This may be especially important to you if you have children with your spouse and you will need to continue to work together as parents after the divorce. You also have more control over the process. Finally, depending on the dynamics between you and your spouse and the mediator involved, mediation can be faster and less expensive than traditional litigation.
Not all cases, however, will be appropriate for mediation and an experienced mediator or family law practitioner can advise you as to whether it may be right for your particular situation.
The specific process of private mediation will depend on the chosen mediator and the parties involved. It will usually take place in the mediator’s office with you and your spouse in the room together and without your attorneys present. It generally will take several sessions to complete the mediation process, but the process is voluntary and either party can terminate mediation at any time.
Under Massachusetts law, mediation is confidential, meaning that the work product of the mediator and any communications made during mediation are confidential and not admissible as evidence in divorce and other legal proceedings. M.G.L. c. 233, § 23C. For this confidentiality provision to apply, your mediator must have completed a certain amount of training and meet the criteria of the statute. Your mediator should explain to you what is protected by confidentiality and what may not be (for example, some mediators are mandated to report child abuse).
Most mediators will recommend that you consult with an experienced family law attorney during the process. An attorney can help you prepare for the mediation, act as a consultant during the process, advise you as to whether the agreements you have reached are in your best interest, and represent you for the final negotiation and presentation of the agreement to the court. If an agreement is reached, there will be a process involving your individual attorneys where the agreement will be reduced to writing and the final details negotiated. Once the agreement is finalized and signed, in most cases it will then need to be presented to the court for approval. If no agreement is reached, you will discuss with your individual attorney your options, which may include filing a complaint for divorce with the court and beginning traditional litigation.
If you are interested in mediation, please contact our office for additional information. Our family law practitioners are experienced with both mediation and divorce litigation, and we often serve as attorneys representing clients during and after the mediation process.
1 This article does not discuss the specifics of “court-connected” or “court-ordered” mediation services.
