Divorce Mediation FAQ

What is Divorce Mediation?

In a nutshell:

In divorce mediation, the two divorcing parties meet jointly with a qualified mediator for a number of guided sessions and collaborate to resolve the issues in their divorce.  The mediator does not represent either of the parties, and must be an impartial, objective and fair third party. The mediator does not make judgments or dictate terms, but instead helps guide the two of you toward an agreement the two of you make that suits your needs.  The process is designed to reduce the adversarial element often encountered in divorce court proceedings; produce a more workable and lasting agreement; and saves time and money.

Why Choose Divorce Mediation?

By choosing divorce mediation, you and your spouse work cooperatively, rather than engaging in an expensive and stressful legal contest.

You create your own agreement, rather than allowing others to make decisions for you. The agreement that you design in mediation includes everything that is important to you. In mediation, unlike in court, there are no surprises. The discussion continues until each of you is convinced that the agreement will work for you.

You set the pace. You won’t be frustrated by court delays or pressured to meet court-imposed deadlines. Your mediation can proceed as slowly, or as rapidly, as you choose.

You maintain your privacy by staying away from the courthouse.  All discussions and documents in the mediation sessions are protected by a confidentiality statute.

If you have children, mediation helps you design a parenting plan that works best for your family. You have time to try out different options before you sign a final agreement.

Mediation lessens the tension between the two of you and enables you to work together as parents, and even maintain a productive, respectful relationship.

You get your “day in court,” your chance to be heard, but in a private setting. The mediator listens, and your spouse listens too.  Because mediation is focused on the future, everyone searches for solutions, rather than dwelling on the past.  The result is a positive process, where you move forward, rather than getting stuck in the past.

What are the benefits of mediation?

  • Control over the outcome
  • Control over the timing
  • Cost savings
  • Privacy
  • An opportunity to design a settlement agreement that is specific to your family’s needs
  • Mediation is less painful and frustrating.
  • The parties communicate directly and honestly with each other about their respective goals and interests.
  • Each party speaks for himself or herself in a manner that is not disrespectful of the other.
  • When children are involved, studies show that divorce agreements mutually agreed upon by the parents usually result in better conditions for the children than those imposed by court order.
  • When parents reduce their overall conflict, the children benefit directly.
  • The structured process allows the husband and wife to establish their own goals and design for themselves, with the mediator’s help, the best way to use their own resources.
  • Parents — not judges or lawyers — usually know better than anyone else what is best for their family.
  • When spouses learn to collaboratively solve problems and decide for themselves, destructive emotions like frustration, anger and helplessness are diminished.
  • When parents learn how to address problems and collaborate to solve them in the mediation process, they retain those skills and develop methods of avoiding conflicts and solving problems long into the future.
  • When spouses can talk and listen to each other, each feels less threatened by the other, or intimidated by superior negotiating positions.
  • Self-determination, rather than orders imposed by a court, reduce conflict and increase the likelihood of compliance.
  • People will change during and after the divorce. A plan worked out by them can be more flexible in adapting to their changed circumstances.
  • By hiring a mediator to help them work out an agreement, parents can save themselves time, money and frustration.
  • Mediation is empowering. There is a greater sense of satisfaction and control because you, not lawyers or judges, make all of the decisions that affect the future of your family, finances and lives. You get control, and keep control, over your life.
  • Mediation is more humane. It promotes communication, respect, trust, and cooperation, which often extend into your future relationships. Focus is on problem-solving, not on casting blame.
  • Mediation is faster, so you can all move on with your lives. Every couple is different, and while some can take as little as two hours, the average mediation takes 6-12 hours. Sessions are usually scheduled a week or two apart.
  • Mediation protects children from the emotional trauma which often accompanies contested divorces. Studies show that children feel secure and adapt better to their new family structure when their parents get along.
  • Mediation is less stressful. It is less emotionally draining on you, your spouse, and your children.
  • Mediation is fair and just – because there is no agreement to sign until you are both fully satisfied with all of its terms.
  • Mediation results in less post-divorce litigation. Research shows greater satisfaction and higher compliance rates than in adversarial cases.

What issues can be resolved in mediation?

Mediation can be used for resolving:

  • Child custody and parenting arrangements;
  • Visitation;
  • Child Support;
  • Alimony;
  • How the marital home and other assets will be divided;
  • How debts of the parties will be repaid;
  • Other financial needs of family members;
  • Post-divorce disputes such as Modification and Contempt actions;
  • Many other issues unique to your family circumstances.

How does mediation differ from litigation?

Mediation Is . . .Litigation is . . .
Voluntary.
Participation is freely chosen and can be terminated at any time by any participant.
Involuntary.
Parties are compelled to participate by legal process and threats of sanctions.
Self-determined.
Decision-making authority always rests with the individuals. The mediator does not dictate terms or impose conditions
Dictatorial.
Judges, magistrates, lawyers, and court officials make decisions and impose them on you.
Impartially guided.
Mediators are neutral in facilitating conversation; any mediators’ prior personal or professional relationship with either party must be specifically disclosed and accepted.
Agenda-Driven.
Judges, lawyers and court officials seek to resolve your case in accordance with rules and standard procedures. You cannot choose your judge.
Collaborative.
You and your spouse work together to find solutions that work best to meet your family’s needs.
Adversarial.
Lawyers fight to get the best deal for their client, opposing even your reasonable requests and proposing contrary results.
Confidential.
All information related to the content and process of mediation is kept confidential, except as required by law.
Public.
Most information related to your personal life and finances becomes a public record open to public inspection.
Based on Full Disclosure.
Both parties agree to fully disclose all assets, income, debts and expenses, and understand the nature of the process and the implications of their decisions.
Requires Investigation.
You or your lawyer must undertake costly legal procedures to dig up information on assets, income, debts and expenses which are not disclosed on court forms.

What is the final result of mediation?

When an agreement is reached, the mediator will usually prepare a “Separation Agreement” to be signed by the parties.  The completed and signed agreement is enforceable and is filed with the court for approval.  Parties are encouraged to consult with their own lawyer to review the separation agreement before signing.Often lawyers refer their clients to mediation to resolve some or all issues.  In those cases, the mediator may only prepare a draft of the separation agreement, or a “memorandum” of the agreed terms, which is later, incorporated into a Separation Agreement by the parties’ lawyers.

What do mediators do?The mediator serves as:

  • Facilitator — helping identify the issues, developing an agenda, keeping the mediation on track and preventing logjams.
  • Educator–providing information (but not advice) about divorce laws and procedures, including custody, visitation, child support, alimony and property division.
  • Idea generator — offering creative options and brainstorming. A mediator who is an experienced divorce lawyer can suggest many options the parties would not otherwise be able to think of.
  • Translator–clarifying words and meanings to facilitate better understanding.
  • Agent of reality–helping to assess the workability of options.
  • Scribe–taking notes and writing down agreements.

Does mediation always work?

Sadly, even the best mediator can be stumped and even parties negotiating in good faith can reach an impasse. We cannot guarantee you won’t encounter such a stalemate, however even in those tenacious cases, mediation usually achieves a partial agreement on many of the important issues, narrowing down the focus and reducing the scope and cost of future litigation.

Is mediation always better than litigation?

No doubt, mediation works best where the two parties are roughly on a “level playing field” in terms of bargaining power and their assertiveness. If one party is more articulate, powerful, and controlling, and the other tends to be passive, malleable, and fearful, this does not always make a good profile for a mediated divorce. The mediator must be alert that mediation with parties who fit this pattern could result in duress and if a fair agreement does not appear possible, the mediator will screen the parties out or refer them to traditional litigation.  On the other hand, it is the mediator’s duty to conduct a fair and impartial mediation, which sometimes includes educating parties to legal realities that are not always easy to learn, including their risks of going forward in traditional litigation.

We Barely Talk To Each Other; How Can We Possibly Mediate?

All that is needed is a willingness to try to reach a fair agreement. The mediator is a professional trained at promoting productive communications and defusing tension. Even couples who barely speak to each other often have little difficulty expressing their needs and concerns in the presence of a neutral mediator.

What is the cost of mediation?

We charge $225.00 per hour for all services including mediation sessions as well as outside services, like writing agreements, progress summaries, phone calls and consultations with others.  Most couples take between 5 and 10 hours of mediation session time to complete their agreement.  A retainer of $2,250.00 is required at the onset, to be applied against billed time and expenses.  The parties usually reach an agreement in advance as to sharing the cost of mediation in some manner, i.e., according to their respective abilities, or agreeing to pay the costs from joint assets.If more sessions are needed, we require payment at the conclusion of each additional session.There are some additional costs of a divorce, such as the $220 court filing fee, the approximate $60 charge you each pay for parent education classes (if you have a minor child), and whatever you pay your own legal, financial or other advisor if you choose to have one.Obviously, mediation costs vary depending upon how much time we spend on your case, which in turn, depends on the complexity of the issues and the nature of the personalities involved.

Do I need a lawyer to obtain mediation?

No, a lawyer is not always necessary to mediate your divorce. Many parties use mediation to negotiate their agreement, and prepare the other forms necessary to file with the court themselves. We can provide you with those necessary forms, and simple instructions for filing, but cannot provide you with legal advice or file them on your behalf. Ideally, we encourage parties entering into mediation to each see a separate divorce lawyer prior to the first mediation session to advise you as to your rights, obligations, risks and possible outcomes in traditional litigation; and again as often as you wish as the agreement takes form to ensure the final result is in alignment with those expectations. Unfortunately, this is not always possible, or affordable, for all parties.

Can I have a lawyer and still obtain mediation?

Absolutely. Good mediators welcome participation by independent lawyers and know that it brings great value to the process. We believe that mediation, with the assistance of attorneys before, during, and after the process, is the best paradigm for a fair, cost-effective divorce. Your lawyer is your advocate in a way that a mediator cannot be. Also, the mediator cannot accompany you to court or help you file necessary court forms.  If you can’t afford to hire an attorney for the whole process, we encourage you to have a separate attorney at least to review the terms of the agreement that results from the mediation. The feedback from attorneys is often invaluable in making adjustments in the terms of the agreement, advising the clients on his or her rights and responsibilities, and making sure waivers, if any, are made knowingly.  Most experienced divorce lawyers will agree to consult with you on a limited basis to review your agreement before signing.

If I don’t have my own lawyer during mediation, how do I know I’m making a fair agreement?

Properly trained, ethical mediators work “in the shadow of the law” and have an obligation to provide legal information (but not advice) about the various issues and aspects of your divorce.  We have copies of relevant laws and rules available to our clients (most of them on this website); and make sure our clients know of important rights.  Although it’s your right to contract freely, and many times there are good reasons to give up or trade certain rights (i.e., pension rights for college costs), we cannot and will not permit a party to unknowingly waive such important legal rights.  Otherwise, your agreement would not be produced by “informed consent” and would not be accepted by the court.

How do I know if my mediator is qualified and competent?Presently, there is no single law requiring minimum qualifications, training, or certification of divorce mediators in Massachusetts, and there is no single agency responsible for policing mediators.  However, various laws and court rules converge to create a minimum level of qualification in order to protect client confidentiality.  Attorney Tremblay complies with those requirements.

Attorney Tremblay attended the prestigious MCLE (Massachusetts Continuing Legal Education) Center’s rigorous training program for divorce mediators under the tutelage of such esteemed mediation experts as retired Probate and Family Court Judges Hon. Edward M. Ginsburg (Ret.); Hon. Eileen M. Shaevel (Ret.), and Hon. Gail L. Perlman (Chair of the Massachusetts Supreme Judicial Court Standing Committee on Alternate Dispute Resolution); John A. Fiske, Esq., Norman Sherman, Esq., David A. Hoffman, Esq.; Cynthia Bauman, Esq., and others.  In addition, he is a member in good standing in the Massachusetts Council on Family Mediation, the largest and oldest recognized professional organization of mediators in Massachusetts, and abides by its standards of practice.

And, of course, Attorney Tremblay has been a practicing lawyer since 1982 with extensive experience in divorce litigation. Click here for a full resume of Attorney Tremblay’s legal experience.

How can I learn more?

Call or email us today for a free half-hour initial consultation.  It costs nothing to learn whether divorce mediation will help you find the right solutions for your family.