Wednesday, December 18, 2019

Is Divorce Mediation Legally Binding?

I hear this question a lot but it is not exactly the right question.  Mediation is a voluntary process in which both parties agree to use mediation to help them resolve their dispute.  In the case of a divorce, the mediator will help the parties reach an agreement which will then be drafted into a divorce agreement and ultimately presented to the judge for approval.

Let’s go back to the question, “Is Divorce Mediation Legally Binding?” Mediation is different than arbitration.  In arbitration, the parties present their dispute to an arbitrator and the arbitrator makes a decision. It is sort of like a trial in front of a private judge. Some arbitrations are binding and some are not. Arbitrations often arise as a result of a contractual provision that requires arbitration in the event of a conflict. The contract will indicate whether the arbitration is binding or not.

Mediation is very different.  First, as stated above, mediation is voluntary. Second, the mediator does not make a decision. The mediator’s role is to help the parties discuss the issues and help them reach an agreement.  If the parties reach an agreement, the mediator will draft the agreement in a form that the parties can submit to court.  In the case of a divorce, the mediator will draft a divorce agreement. In Massachusetts, this is called a “Separation Agreement.”  Prior to an agreement being signed by the parties, nothing is binding.  Assuming your mediator meets the criteria of the Massachusetts Confidentiality Statute (Massachusetts General Laws chapter 233 section 23c (  and you have signed a mediation agreement which includes a confidentiality provision, the mediation process and any statements made during mediation are confidential and cannot be used in court.  Once the parties have signed the divorce agreement, it becomes a contract and is enforceable as a contract  but it is not yet a court order.

The parties will then file their divorce agreement with the court. At the parties’ divorce hearing, the judge will go over the terms of the agreement and will ask the parties a series of questions to make sure they both understand the agreement and believe the agreement is fair and reasonable.  It is at the point at which the court approves the agreement as part of the parties’ divorce that it becomes truly binding.  At that point, the agreement becomes a court order.  If a party violates any terms of the agreement, the other party may choose to try and enforce the provision by bringing a Complaint for Contempt.