Confidentiality and Divorce Mediaiton

In Massachusetts, the confidentiality of the divorce mediation process is protected by law. This can make a huge difference in your divorce because some very intimate details about your marriage are bound to come up in the process. If this happens in a divorce litigation, those details will often be included in a court filing, which is a public record and therefore accessible by members of the public. 

In a divorce mediation with a qualified mediator, on the other hand, the confidentiality of any information that gets exchanged during mediation is protected by Ch. 233, s. 23C, so long as both spouses sign a participation agreement before the mediation begins. Importantly, this confidentiality applies even if the mediation process proves to be unsuccessful. This prevents any of the documents or the disclosures made during mediation from getting out into the public eye, protecting your privacy and allowing you to fully participate in the mediation without worrying about divulging something you do not want your neighbors to know about.

In general, a statutory mediator cannot be subpoenaed to testify in court, nor can any of her work product – including notes, documents or recollections of what either party may have said during the course of the mediation – admissible.

If you or someone you know could benefit from assistance in decision making during a divorce, contact Falmouth Mediation at 508-566-4159 for a free, no-obligation, private, confidential consultation. We will be happy to discuss the key details of your situation, address any concerns, and help you decide if divorce mediation would be beneficial.

The Use of Financial Experts in Divorce Mediation

For spouses whose divorce mediation includes complex financial issues, it is often helpful to include one or more outside financial experts in the mediation process. Financial experts can aide the mediation process in a variety of ways. For example, a jointly retained appraiser can help the parties determine the agreed-upon value of complex assets subject to division, ranging from real estate to small businesses to artwork.

Similarly, a Certified Divorce Financial Analysts (CDFA) can assist participants in understanding the tax implications of potential settlement proposals or help participants generate settlement proposals that balance the individual needs of each spouse based on factors such as cash flow, present and future expenses, retirement needs and future employment prospects.

One hallmark of mediation is that participants negotiate directly to reach their own settlement outcome. Unlike litigation, where the framework is dictated by judges, attorneys and the litigation process itself (i.e. discovery, mandatory hearings, etc.), mediation puts parties directly across the table from one another, often with little outside input.

But what happens during mediations that involve complex financial issues that one or both participants struggle to grasp? Even if the parties are using a financial sophisticated mediator, there are limits to how much analysis and opinion the mediator should offer, where his or her main focus is on managing the negotiation process as a third party neutral. A better option for resolving complex financial issues in divorce mediation often includes using a jointly retained financial expert to assist the parties in identifying and addressing financial concerns and/or translating the participants’ financial goals into real world transactions. The role of a joint financial expert who participates directly in mediation sessions is somewhat different from that of the mediator. Like the mediator, such financial experts are acting as an objective neutral, rather than representing a specific spouse. However, joint financial experts tend to hold an evaluative position in the mediation that contrasts in important ways with the more facilitative role of the mediator.

Put simply, a financial expert acting in an evaluative role is expected to analyze the financial records and information provided by the spouses and offer specific analysis and suggestions to participants by flagging financial concerns, suggesting specific settlement options and generating language that translates participants’ individual and shared interests into specific positions within a written agreement. The financial expert’s evaluative role often contrasts with the more facilitative role of the mediator, whose primary task is to facilitate the exchange of ideas between the parties (rather than suggesting ideas to the parties) while managing the mediation process.

Not every divorce mediation requires the involvement of a financial expert. For divorces featuring straight forward child support or alimony issues, and where the assets consist primarily of a single home and each party’s 401K account, the input of a financial expert probably isn’t necessary. However, for families with substantial or complex asset holdings, or significant compensation, a financial expert can provide a valuable role in the mediation process on behalf of spouses seeking a mutually beneficial resolution to their divorce.

How to Get Your Spouse to Agree to Mediation

One of the initial challenges in mediation that you may face is getting your spouse on board to give it a try. When your marriage is ending, and both of you are going your separate ways, it can be hard to be on the same page about anything, much less mediation. Use the following tips to help you ask (and convince) your spouse to mediate the divorce.

Be prepared - As with anything, preparation is critical. While you don't need to be an expert on mediation, having enough background knowledge to understand why it interests you is essential. Do some research ahead of time. You might be able to find all you need to know with a simple online search, but if you are missing information, contact a professional for those details.

Communicate carefully when asking your spouse to mediate your divorce - Once you have the details about mediation, communicate carefully with your spouse. Keep in mind that you may both be reeling from the changes taking place, so this is a great time to tread lightly. 

Choose a time when conflict is limited between the two of you. Don't pick the moment that a child is challenging or one of you is late to a meeting. You know when those moments are, and the best thing you can do is to avoid them.

In some cases, direct conversation consistently leads to conflict. If that's the case for you, it does not mean you can't use mediation to resolve your difference. Consider sending an email or text instead. Not only does it give the other person a few minutes (or hours) to think about their response, but it allows them to do so at a time that is convenient for them.

If necessary, reach out to your mediator for assistance. On rare occasion, I work with clients who request that I contact their spouse on their behalf. In those cases, I send either an email or a letter introducing myself and the mediation process. I also invite the spouse to schedule a call to discuss any questions or concerns they may have.

Share resources - If you have been doing your research online about mediation, share the resources you find with your spouse. If the resources convinced you that mediation is right for your situation, they may very well convince your spouse as well.  

Focus on the benefits of mediation - Just because you want to do something, doesn't mean that your spouse will as well. Focus on how mediation will benefit both of you. For example, mediation allows for:

• Putting your family first
• Greater control over the outcome
• Privacy
• Affordability
• ...among other things. When you know the benefits ahead of time, you'll be able to convey them to your partner.

Don't force the issue - No matter what you do, don't force the issue of mediation with your spouse. Ideally, you want an amicable settlement and angering or irritating the other party will only result in frustration on both sides.

Finding Joint Custody Solutions Through Mediation

There are several major advantages to mediating your divorce compared to litigation. Among the biggest advantages is that mediation rewards creativity, cooperation and positive communication between parents on child-related issues. For parents who can look past negative emotions towards each other, the key to a cooperative co-parenting relationship often arises out of mutual respect and thoughtful communication during the mediation process.

Thankfully, mediation offers solutions to many of the shared custody challenges above, including the following:

• Creating a schedule that encourages strong and consistent routines for children. One advantage experienced by children who primarily reside with one parent is that the children have a more consistent “home base” from which they can plan and live their every-day lives. Parents who share custody must ensure that children have consistent routines between households to undertake tasks such as doing homework and ensuring rides to and from after school activities.
• Choosing a parenting schedule that compliments each parent’s work schedule. Work responsibilities often vary widely between parents, with one parent better equipped to deal with unexpected changes – such as a child staying home sick from school – than the other. Parents who can foresee these concerns and “bake in” solutions for the future often do best in shared custody arrangements.
• Creating a parenting plan that is built to last. Finally, mediation rewards parents who think ahead. Caring for a 4-year old is very different than caring for a 14-year old. Parents can’t foresee every possible future issue involving their children, but mediation encourages parents to consider and communicate about the future, including (a.) positive goals and outcomes the parents would like to see for their children and (b.) potential pitfalls and complications they may face down the road.

Modifying a Child Support Order in Massachusetts

In general, Massachusetts child support orders can be modified at any time until the final emancipation of a child through a Complaint for Modification filed by either parent seeking a change in child support.  The amount of child support is determined by the Massachusetts Child Support Guidelines. A child support judgment may be modified for any of the following reasons set forth in the Guidelines as follows:

• There is an inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines.
• Previously ordered health care coverage is no longer available.
• Previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship.
• Access to health care coverage not previously available to a parent has become available.
• Any other material and substantial change in circumstances has occurred.

Most child support modifications are driven by a change in the child support guideline calculation order based on an increase or decrease in one or both parties’ gross incomes. Such modification actions are often triggered by the filing parent’s job loss or a promotion or new job for the other parent.

Many child support modifications start with the filing of a Complaint for Contempt, which requires the parties to file financial statements, which then leads to a recalculation of child support. Similarly, a major change in parenting time – i.e. a change in primary physical custody between parents, or a change from shared physical custody to sole custody for one party – can also trigger child support modifications, since amount of child support under the Guidelines varies widely based on whether the parties share physical custody of the child(ren) versus one parent serving as the primary custodian.

Courts can also modify child support based on “material and substantial change in circumstances”. A change in circumstances must be significant enough to render the initial child support order inappropriate under the circumstances. For example, if a parent loses a job through no fault of their own, they may seek a modification to reduce their child support, at least until they become gainfully employed again.

Similarly, if a child developed a medical condition that required the use of adaptive equipment—such as a wheelchair, or crutches—and routine physical therapy treatments, a party can request the court to modify the child support order to increase the amount of payments to help cover the additional expenses arising from the child’s medical condition. (Often, however, the parties have an agreement that they will split equally the cost of any uninsured medical expenses for the child, so a modification of base child support in that situation may not be necessary.) A parent’s illness can also justify a modification in support, in both the child support and alimony contexts. (Indeed, the law includes very specific remedies if the child support paying parent begins receiving SSDI.)

The Guidelines also provide judges broad discretion to modify child support for unusual, unexpected circumstances affecting the lives of a party or child. Perhaps a parent’s new spouse contracts a terminal illness. Perhaps a child is admitted in a special education facility full-time. Perhaps one parent hits the lottery. Courts can increase or decrease child support based on a wide variety of factors. However, to the extent that the new child support judgment represents deviation from the Child Support Guidelines, judges are required to enter written findings explaining the purpose of the deviation.