Pros and Cons of Divorce Mediation in Massachusetts

Many blog posts by divorce mediators list the benefits of divorce mediation, but this page also lists the most important cons. The single biggest potential risk of divorce mediation is that a dominating spouse will negotiate an agreement that unfairly favors him or her. This post explains how to avoid this negative outcome by hiring an active (“evaluative”) expert divorce mediator who can maintain a level playing field when there is a power imbalance between spouses.

The Pros of Divorce Mediation Are Numerous:

• It is much less expensive than hiring lawyers and litigating, and it is much less expensive than hiring two litigating lawyers to attempt to negotiate an uncontested divorce outside of court.¹

• It is much faster than using the courts for a contested divorce.²

• It empowers you to be creative and make decisions tailored to you and your family. A good family law mediator gives you the tools to customize your separation agreement according to your family’s unique priorities and needs.³

• In contested cases, a judge does not have time to understand your situation or customize the divorce agreement in ways that work for both of you. They must keep cases moving. The judge will simply impose court orders about how you take care of your children, what happens to your property, and how much, if any, support will be paid.⁴

• It is less adversarial than the courts, which are set up as a competitive contest. Even the way cases are named, e.g., “Plaintiff/Defendant” or “Jones vs. Jones”, suggests a competition with winners and losers.⁵

• If you have children, mediation gives you practice in discussing and coming to agreement on the many practical issues that you will continue to face as your children grow and you co-parent after divorce.⁶

• It is more private than a contested case, where your finances and personal business are publicly discussed in court.⁷

• In a contested case, you will not know what is going on in court. You and your spouse understand your children’s needs, the value of your house, what belongings each of you wants to keep, and the importance of keeping health insurance. Unfortunately, once a case is on a contested track, none of this practical knowledge matters. Court motions, proceedings, and legal rules of evidence take over, and you will have great difficulty understanding it.⁸

Cons of Divorce Mediation in Massachusetts

There is one small disadvantage and two potentially major disadvantages to divorce mediation:

• Cost Barrier: The small disadvantage is that hiring a divorce attorney mediator costs more money than doing the process yourself. Unfortunately, Massachusetts family courts have made the divorce process difficult to do yourself. The required court documents are poorly designed and confusing, making it very difficult to know what they are asking for, why they are asking for it, and what information goes where. Courts regularly reject DIY divorce filings over minor technicalities and don’t tell people how to fix them. Because court clerks are so afraid of giving “legal advice” (even though they are only giving “legal information”) they write messages such as, “We cannot give you legal advice. You should seek legal counsel” when they reject your filing.⁹

• Risk of Concealed Financial Information: The first potential major disadvantage of divorce mediation is that a dishonest spouse can more easily hide assets or financial information from the other spouse than they can in a contested case.

  Contested cases often begin with “discovery”, in which each spouse’s attorney requests 3–5 years of paystubs, credit card statements, bank statements, tax documents, business records, investment statements, property appraisals, insurance payouts, and records of debts, liens, and mortgages. This is a very long, inefficient, and expensive process. It does not guarantee that hidden assets will be found or that a complete financial picture will emerge, but it can make it more likely.¹⁰
  
  A family law mediator does not impose “discovery” on a couple, but the mediator can support a spouse’s request for particular disclosures. If a spouse in mediation requests to see financial statements or records from the other spouse, the mediator will support this request. The mediation lawyer, however, will not initiate the discovery process.

  The honest spouse has some legal protection because the Financial Statements that are submitted to court are signed under penalty of perjury. If the financial statements are eventually found to be fraudulent, even after the divorce is final, financial aspects of the divorce agreement can be re-opened and litigated.¹¹

• Power Imbalances and Assertiveness Gaps: The second potential disadvantage of divorce mediation is that if you do not have one of the best divorce mediators in Massachusetts, a dominant or more forceful spouse can push a less assertive spouse into an agreement that favors the more forceful spouse.¹² The separation agreement could favor the dominant spouse financially, in terms of parenting plan, or in other details.

  This is possible because mediators cannot advocate for one party or the other. If one spouse tends to be aggressive and insists on always getting their way in the marriage—and the other spouse regularly submits to this—this pattern can carry over into mediation.¹³ The resulting separation agreement can easily favor the more assertive partner.

For such marriages, it is very important to have an active attorney mediator who makes sure the couple understands legal parameters, rights, and standards. It is also important to hire a mediator who regularly and clearly illustrates, in black-and-white numbers, the fairness (or lack thereof) of financial decisions the couple are considering. Even a relatively unassertive spouse may be empowered to speak up for themselves if they can see that their spouse is trying to pay below standard amounts for child support or if the division of assets is not close to 50-50.¹⁴

There are two final layers of protection for a less assertive spouse:

1. Outside Attorney Review: Each spouse is always welcome to consult with an attorney, who advises them on how to maximize their side of the equation in divorce. A person who feels like their spouse dominated them in their marriage can consult with an attorney after the mediator prepares the financial statements and an initial draft of the separation agreement. The consulting attorney can review the initial draft and frankly advise the less assertive spouse if the agreement seems fair and equitable. Such a consulting attorney can suggest ways a less assertive spouse could benefit from aggressive representation by an attorney in a contested case.¹⁵

2. Judicial Oversight: The second and final layer of protection against a one-sided agreement is the judge who reviews and signs the separation agreement. It is only when the judge signs the agreement that it becomes a court order and the divorce decree is issued. The judge can and should reject the agreement if the judge determines it is unfair.¹⁶

Finally, if either spouse stands before the judge and says, “I don’t think this agreement is fair and I don’t agree to it,” then the judge does not sign it and the case is dismissed. There is no divorce.

Footnotes

1. Emery, R. E. (2012). Renegotiating Family Relationships: Divorce, Child Custody, and Mediation. Guilford Press.

2. Kelly, J. B. (2004). “Family mediation research: Is there empirical support for the field?” Conflict Resolution Quarterly, 22(1–2), 3–35.

3. Mnookin, R. H., & Kornhauser, L. (1979). “Bargaining in the shadow of the law: The case of divorce.” Yale Law Journal, 88(5), 950–997.

4. Saposnek, D. T. (2004). Mediation and Child Custody: Achieving a Win-Win Custody Agreement. Jossey-Bass.

5. Rifkin, J., Millen, J., & Cobb, S. (1991). “Toward a new discourse for mediation: A critique of neutrality.” Mediation Quarterly, 9(2), 151–164.

6. Emery, R. E. (2011). “Two Homes, One Childhood: A Parenting Plan to Last a Lifetime.” Family Court Review, 49(1), 17–30.

7. Waldman, E. (1997). “Privacy, accountability, and the cooperative divorce.” Buffalo Law Review, 45, 1121.

8. Singer, J. (1994). “The privatization of family law.” Wisconsin Law Review, 1992(6), 1443–1539.

9. Rhode, D. L. (2001). “Access to justice: An agenda for legal education and research.” Journal of Legal Education, 62, 531.

10. Kelly, J. B. (2004). “Family mediation research: Is there empirical support for the field?”

11. Mass. Gen. Laws ch. 208, § 34; and Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984).

12. Grillo, T. (1991). “The mediation alternative: Process dangers for women.” Yale Law Journal, 100(6), 1545–1610.

13. Bryan, P. E. (1992). “Killing us softly: Divorce mediation and the politics of power.” Buffalo Law Review, 40(2), 441–509.

14. Brinig, M. F., & Buckley, F. H. (1998). “Fairness and the division of property upon divorce.” Vanderbilt Law Review, 63(3), 597–626.

15. Mnookin & Kornhauser (1979).

16. Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984); see also Downing v. Downing, 12 Mass. App. Ct. 968 (1981).

Blog post by Benjamin Bailey, PhD, Professor of Communication at the University of Massachusetts